15.5.2023

Official Journal of the European Union

C 173/13

(Case C-28/23, NFŠ)

(2023/C 173/19)

Language of the case: Slovak

Referring court

Parties to the main proceedings

Applicant: NFŠ a.s.

Defendants: Slovenská republika (Slovak Republic), acting through the Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky, and Ministerstvo školstva, vedy, výskumu a športu Slovenskej republiky

Questions referred

1.Do a grant agreement and an agreement to enter into a future sales agreement, concluded between a ministry (the State) and a person governed by private law selected outside competition procedures, constitute ‘public works contracts’ within the meaning of Article 1(2)(b) of Directive 2004/18 (1) or Article 2(6)(c) of Directive 2014/24 (2) where the grant agreement constitutes State aid approved by the European Commission for the purposes of Article 107(3)(c) TFEU, the grant agreement contains an obligation on the State to grant a subsidy as well as an obligation on the person governed by private law to construct the building in accordance with conditions specified by the ministry and to allow a sports organisation to use a part of that building, and the agreement to enter into a future agreement contains a unilateral option conferred on the person governed by private law in the form of an obligation on the State to purchase the constructed building, while those agreements constitute a framework of mutual obligations between the ministry and the person governed by private law which are linked in terms of time and subject matter?

2.Does Article 1(2)(b) of Directive 2004/18 or Article 2(6)(c) of Directive 2014/24 preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement of the rules on public procurement?

3.Do Article 2d(1)(a) and Article 2d(2) of Directive 89/665 (3) preclude national legislation of a Member State under which any legal act which by its content or purpose contravenes or circumvents the law or is contrary to accepted principles of morality is absolutely invalid (that is to say, from the outset/ex tunc) where that infringement of the law consists of a serious infringement (circumvention) of the rules on public procurement, as in the main proceedings?

4.Must Article 1(2)(b) of Directive 2004/18 or Article 2(6)(c) of Directive 2014/24 be interpreted as precluding ex tunc the assumption that an agreement to enter into a future sales agreement, such as that at issue in the main proceedings, has produced legal effects?

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

(2) 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 (OJ 2014 L 94, p. 65).

(3) Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395. p. 33).