delivered on 29 October 2020 (1)

Case C‑862/19 P

(Appeal – European Social Fund (ESF) – European Regional Development Fund (ERDF) – Partial cancellation of assistance for operational programmes in the Czech Republic – Directive 2004/18/EC – Article 16(b) – Specific exclusion – Public service contracts relating to programme material intended for broadcasting)

The appeal concerns the interpretation of Article 16(b) of Directive 2004/18/EC, (2) in accordance with which the directive does not apply to public contracts for ‘the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters’.

The Czech Republic authorities directly awarded a number of contracts, co-financed by funds from the ERDF and the ESF, (3) to produce televised advertisements which would promote the use of European Funds. The Commission took the view that those awards could not be made under Article 16(b) of Directive 2004/18 and it therefore made the appropriate financial correction, a decision which the Czech Republic challenged before the General Court.

In its judgment of 12 September 2019, (4) the General Court dismissed the action brought by the Czech Republic, which is now appealing to the Court of Justice.

There are two conflicting positions in the dispute: (a) the Czech Republic contends that any contracting authority is entitled to rely on the exclusion at issue, (5) provided that the requirement concerning the object of the contract is satisfied; (b) the Commission argues that the exclusion applies only to contracts awarded by broadcasters, which was not the situation in this case.

While there is an undeniable interest in determining which of those two interpretations must prevail, the general importance of the problem (and its solution) has been overtaken, since, to my mind, the new Directive 2014/24/EU (6) adopted the Commission’s position. (7)

Article 1 provided:

‘For the purposes of this Directive:

…’

Recital 25 was worded as follows:

‘The awarding of public contracts for certain audiovisual services in the field of broadcasting should allow aspects of cultural or social significance to be taken into account which render application of procurement rules inappropriate. For these reasons, an exception must therefore be made for public service contracts for the purchase, development, production or co-production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme and contracts concerning broadcasting times. However, this exclusion should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes. A broadcast should be defined as transmission and distribution using any form of electronic network.’

Pursuant to Article 16:

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

…’

Recital 23 states:

‘The awarding of public contracts for certain audiovisual and radio media services by media providers should allow aspects of cultural or social significance to be taken into account, which renders the application of procurement rules inappropriate. For those reasons, an exception should therefore be made for public service contracts, awarded by the media service providers themselves, for the purchase, development, production or co-production of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme. It should also be clarified that that exclusion should apply equally to broadcast media services and on-demand services (non-linear services). However, that exclusion should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes.’

Article 10 provides:

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

…’

II. Facts of the dispute

The facts of the dispute are set out in paragraphs 1 to 6 of the judgment under appeal and can be summarised as follows:

By Decisions C(2007) 5113 of 12 October 2007, C(2007) 6920 of 27 December 2007 and C(2008) 5344 of 25 September 2008, the Commission adopted the operational programmes ‘Education for Competitiveness’, ‘Research and Development for Innovations’ and ‘Technical Assistance’ proposed by the Czech Republic under Article 32 of Regulation (EC) No 1083/2006. (9)

In April 2014, in the context of those operational programmes, the Commission conducted an audit of public contracts relating to broadcasting services cofinanced by the Czech Republic using funds from the ERDF and the ESF. The Commission found that four of those contracts had been awarded directly, without a public notice, by the Regional Development Ministry and the Ministry of Education, Youth and Sport.

According to the Commission, the direct award of the contracts was unacceptable as it was not possible to apply to those contracts the exclusion laid down in Article 16(b) of Directive 2004/18, which applied only to contracting authorities that were broadcasters.

During the financial correction procedure commenced by the Commission on 17 June 2016, the Czech Republic maintained that the exclusion was applicable to any contracting authority.

Finally, in Implementing Decision C(2017) 4682 final of 6 July 2017, the Commission cancelled part of the ESF assistance for the operational programme ‘Education for Competitiveness’ and part of the ERDF assistance for the operational programmes ‘Research and Development for Innovations’ and ‘Technical Assistance’, and took the appropriate financial correction measures against the Czech Republic.

III. Proceedings before the General Court and the judgment under appeal

The Czech Republic brought proceedings against the Commission decision before the General Court, reiterating its interpretation of Article 16(b) of Directive 2004/18. It was supported by the Republic of Poland.

The action was dismissed by the judgment under appeal.

The General Court pointed out that the exclusion, which had to be interpreted strictly, (10) was previously laid down in Article 1(a)(iv) of Directive 92/50, which was interpreted by the Court of Justice in the judgment in Bayerischer Rundfunk and Others (11) in terms which support the Commission’s position.

In particular, according to the General Court, in accordance with that judgment, the exclusion is based on the public service remit of broadcasters and, therefore, does not concern contracting authorities which do not fulfil that specific remit. (12)

In the General Court’s view, that finding was not invalidated by the arguments put forward by the Czech Republic. In addition to submitting that the judgment in Bayerischer Rundfunk had no bearing on this case, the Czech Republic maintained that, in the light of literal, systematic and purposive criteria for interpretation, the provision did not allow the scope of the exclusion to be limited to public broadcasters.

As regards the relevance of the judgment in Bayerischer Rundfunk, the General Court reasoned that, although in that judgment the Court of Justice ruled on different issues from those now raised, it stipulated which public contracts are subject to EU law. The clarification provided by the Court of Justice, to the effect that the exclusion applies only where contracts are awarded by a contracting authority within the meaning of Directive 92/50, does not mean that it applies to all contracting authorities. (13)

The General Court also pointed out that that judgment stressed that Article 1(a)(iv) of Directive 92/50 was similar to Article 16(b) of Directive 2004/18, which meant that it was relevant to apply to the latter provision the case-law laid down in relation to the former. (14)

The General Court noted that, admittedly, the expression ‘intended for broadcasting’ did not appear in Article 1(a)(iv) of Directive 92/50. However, it was apparent from an examination of the legislative work that that addition reflected ‘the legislature’s intention to refer explicitly to public service contracts awarded by broadcasters in relation to programme material intended for broadcasting on any electronic communications network, including the internet, which reflects the spirit of the final sentence of recital 25 of that directive’. (15)

The General Court stated that the services covered by the contracts to which the provision refers are the same as those referred to in the exception set out in footnote 3 of Annex II B to Directive 2004/18, as amended by Regulation (EC) No 213/2008, (16) which does not contain the term ‘intended for broadcasting’.

It follows that, since, ‘for reasons of internal consistency of the Directive, the exclusion laid down in Article 16(b) of Directive 2004/18 and the exception in footnote 3 of Annex II B to the directive must be considered to have the same scope, the expression “intended for broadcasting” cannot be interpreted as meaning that its aim is to expand the scope of the exclusion at issue’. (17)

The General Court accepted that the wording of Article 16(b) of Directive 2004/18 ‘does not, by itself, make it possible to achieve an unequivocal interpretation of that provision and that there are a number of potential literal interpretations of it’. (18) The divergence identified between the different language versions of the provision invalidated the arguments based on the literal interpretation of the provision. (19)

23.In relation to the systematic interpretation, the General Court rejected the argument that the only criterion taken into account by the legislature when it laid down the exceptions set out in Article 16 of the directive was the subject matter of the contract: subjective limitations were also introduced, as is the case of the exclusion at issue and that in point (d). (20)

24.The General Court refused to accept that the scheme of the provision requires that all the contracts referred to in the same point of Article 16 of Directive 2004/18 must be defined in an identical manner, as regards their object, their contracting authority and their service provider. Thus, contracting authorities which are not broadcasters may directly conclude contracts for broadcasting time, unlike the position with regard to the contracts now at issue. (21)

25.As regards the purposive interpretation, the General Court held that the exclusion covers only public contracts concluded by broadcasters, since its purpose is simply to ensure specifically that the public service remit of those broadcasters is fulfilled. (22) Other public entities which carry out different public service remits in the cultural or social sphere cannot rely on that exclusion. (23)

26.On the latter point, the General Court took the view that that interpretation does not deprive the disputed provision of effect because not all contracts concerning programme material intended for broadcasting are excluded but rather only contracts for services relating to the essential function of broadcasters. The exclusion must only take effect in relation to those contracts and, moreover, it must be interpreted strictly. (24)

27.Since the aim of the exclusion relates to the traditional public service remit of broadcasters, contracting authorities which are not broadcasters are not in the same position as broadcasters, which precludes a finding that the principle of equal treatment has been infringed. (25)

28.Directive 2014/24, which is not applicable ratione temporis, does not accommodate a different interpretation of the provision at issue. (26)

29.The Czech Republic lodged the appeal on 26 November 2019, claiming that the judgment under appeal should be set aside, that the Commission decision should be annulled and that the Commission should be ordered to pay the costs.

30.The Commission claims that the appeal should be dismissed and that the Czech Republic should be ordered to pay the costs.

31.The Czech Republic puts forward a single ground of appeal in which it complains that the General Court erred in law in its interpretation of Article 16(b) of Directive 2004/18.

32.The ground of appeal is divided into four parts which concern, respectively, the origins of the provision at issue and its literal, purposive and systematic interpretations. (27)

33.As explained above, the dispute before the General Court focused on ascertaining whether the exclusion applies only to contracting authorities which are broadcasters – as the Commission contends – or whether, on the other hand, it covers any other contracting authorities – as the Czech Republic contends.

34.The question at issue could not be clearer; nor could the approaches of the parties, which have sound reasons in support of their respective positions, be more different.

35.The Court of Justice is faced, therefore, with a difficult problem of interpretation in a legislative context which is too open and vague – to the point of being contradictory, on account of the divergence between the different language versions – for an unequivocal answer to be given.

36.The Czech Republic submits, first, that the Commission’s proposal which culminated in Directive 92/50 restricted the exclusion to the acquisition of programme material by broadcasters. The legislative process expanded that situation to include also the development, production or co-production of programme material by broadcasters. Accordingly, under Article 1(a)(iv) of Directive 92/50, a broadcaster provided the service of developing, producing or co-producing programme material and, therefore, it could not be a contracting authority, meaning that the scope of the exclusion was broadened. (28)

37.Second, the Czech Republic states that the preparatory documents for Directive 2004/18 confirm that the legislature wished to place the emphasis on the object and use of the contract rather than on the contracting authority or the service provider. (29)

38.Lastly, the Czech Republic maintains that the Commission’s proposal (that the exclusion be expressly restricted to contracting authorities which are broadcasters) also failed when Directive 2014/24 was drafted, for Article 10(b) of that directive lays down an exclusion which is unconnected to the contracting authority. Finally, the Czech Republic submits that not only did the legislature reject again the Commission’s attempts to limit the scope of the exclusion but it actually chose to broaden that exclusion. (30)

39.The Commission argues that the changes in the subsequent versions reflect the need to take account of technical (expansion of online broadcasting) and legislative (implementation of EU rules for providers of media services) developments, but did not lead to a substantial amendment of the content of the provision. Moreover, the Commission contends that the content of the provision is compatible in principle with the Commission’s initial proposal as regards the group of contracting authorities capable of relying on the exclusion. (31)

40.In this part of the ground of appeal, the Czech Republic sets out its own thoughts on the legislative background of the provision but does not indicate which particular paragraphs of the judgment under appeal it considers to warrant criticism. Therefore, this part of the ground of appeal could be classified as inadmissible since it does not satisfy the condition requiring a precise reference to the parts of the judgment under appeal which are deemed to constitute an error of law. In case that is not so, I shall examine its contents.

41.The immediate precursor to Article 16(b) of Directive 2004/18 was Article 1(a)(iv) of Directive 92/50, pursuant to which ‘contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time’ were excluded from the definition of ‘public service contracts’ subject to that directive.

42.The Commission’s original proposal concerned only the ‘acquisition of programme material’ and did not mention development, production or co-production. (32) The intention was that the directive would apply to broadcasters only where they were carrying out activities which were not ‘specific to broadcasting’ [free translation]. (33)

43.In my view, the later inclusion of the words ‘development, production or co-production’ expands on the idea of defining more clearly the specific activities of broadcasting. I agree with the Commission’s argument that the legislature did not broaden the exclusion at issue from a subjective point of view and instead confined itself to requiring that contracting authorities wishing to conclude contracts for the acquisition of programme material or for the development, production or co-production of programme material had to have the status of broadcasters.

44.As regards Directive 2004/18, the Commission’s proposal excluded contracts for ‘the acquisition, development, production or co-production of programmes by broadcasters and contracts for broadcasting time’. (34)

45.That wording, which was almost identical to the wording of Article 1(a)(iv) of Directive 92/50, would be included in the definitive version of Article 16(b) of Directive 2004/18, with the addition of the phrase ‘intended for broadcasting’ after the words ‘programme material’.

46.That addition of that phrase was the trigger for the interpretative difficulties of the provision. It can be construed by reference to broadcasters (the German version) or, simply, as a qualifier of the programme material covered by a contract for acquisition, development, production or co-production (the Spanish version and, of course, the versions in which that additional phrase was not included). (35)

47.To my mind, the introduction of the words ‘intended for broadcasting’ can be explained not in the sense in which the General Court does so (36) but rather in the way reflected in recital 25 of Directive 2004/18, which refers to the need to make ‘an exception … for public service contracts for the purchase, development, production or co-production of off-the-shelf programmes’. (37)

48.I believe that, in the case of ‘audiovisual services in the field of broadcasting’, as stated at the beginning of that recital, ‘off-the-shelf programmes’ are ‘broadcast-ready programmes’, that is, programmes ready to fulfil the purpose for which they are naturally intended.

49.The clarification is explained by the fact that the recital restricts the exclusion to programmes and to ‘other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme and contracts concerning broadcasting times’ but not to ‘the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes’.

50.Therefore, the exclusion is restricted to programmes in the strict sense and to preparatory activities, but not to the equipment necessary for their creation.

51.In short, the ‘programmes intended for broadcasting’ referred to in Article 16(b) of Directive 2004/18 are the ‘off-the-shelf programmes’ referred to in recital 25 of the directive. Understood in that way, the words added to the Commission’s original proposal must be interpreted as qualifying the programmes intended for broadcasting and not in relation to the organisations which broadcast those programmes.

52.In any event, the examination of the legislative origins of the exclusion does not provide any conclusive results, although I tend to the Commission’s view. If my interpretation of the meaning of Article 1(a)(iv) of Directive 92/50 is correct, the expression ‘intended for broadcasting’ refers to the object

of the excluded contracts rather than to the subjects concluding those contracts (the latter are, strictly speaking, ‘broadcasters’).

That interpretation is confirmed a posteriori by Directive 2014/24. Although that directive is not applicable ratione temporis, it may still be helpful to take account of its contents in so far as it is the final stage in the evolution of the exclusion.

Under the Commission’s proposal, contracts for ‘the acquisition, development, production or co-production of programme material intended for audiovisual media services, that are awarded by broadcasters’ and contracts ‘for broadcasting time that are awarded to audiovisual media service providers’ were excluded. (38)

The Commission did not consider it necessary to expand on the reasons on which its proposal was based, which would have been required if it had sought to amend substantially the exclusions in force under Directive 2004/18.

In accordance with the provision ultimately adopted by the legislature (Article 10(b) of Directive 2014/24), that directive does not apply to public service contracts for ‘the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers’. (39)

Unlike the previous version (Directive 2004/18), it is my view that the new provision dispels the earlier uncertainties because it limits the exclusion to contracts concluded by contracting authorities which fulfil the condition of being audiovisual or radio media organisations. (40)

If the legislature had thought that, by means of the new provision, it was introducing a radical change vis-à-vis the previous provision, it would have stated as much in recital 23 which sets out the reasons for the exclusion. However, the fact is that that recital virtually repeats the wording of recital 25 of Directive 2004/18.

There is, however, one qualification: whereas recital 25 of Directive 2004/18 referred to the need to make ‘an exception … for … contracts for the purchase, development, production or co-production of … programmes’, without any mention of the possible contracting authorities, recital 23 of Directive 2014/24 refers to ‘the awarding of public contracts for certain audiovisual and radio media services by media providers’, adding that ‘an exception should … be made for public service contracts, awarded by the media service providers themselves, for the purchase, development, production or co-production of … programmes’. (41)

The wording has therefore been amended in a way which, in my opinion, cannot be interpreted as a rule change but rather as a clarification concerning the meaning which the exclusion in Directive 2004/18 already had.

In short, an analysis of how the exclusion has evolved, from Directive 92/50 to Directive 2014/24, which is now in force, via Directive 2004/18, which is applicable to this appeal, enables the position defended by the Commission and adopted in the judgment under appeal to be accepted.

Therefore, the first part of the ground of appeal, in which the Czech Republic merely asserts that the General Court’s interpretation is ‘contrary to the outcome of the legislative procedure and the clear intention of the legislature’, (42) cannot be upheld.

The Czech Republic submits that ‘there is a connection between the terms “broadcasters” and “programme material intended for broadcasting” in the German version, but not only in that version’, contrary to the finding of the General Court. (43)

In any event, the Czech Republic contends that, even if the General Court is correct, the exclusion does not apply solely to broadcasters which have the status of contracting authority because if the programme material is developed, produced or co-produced by a broadcaster, that broadcaster cannot be the contracting authority awarding the public contract. (44)

Lastly, the Czech Republic disputes the interpretation of Article 10(b) of Directive 2014/24 adopted by the General Court in the judgment under appeal. (45)

The Commission submits, first, that the insertion of the words ‘intended for broadcasting’ has rendered most of the language versions of Article 16(b) of Directive 2004/18 grammatically ambiguous. Accordingly, the divergence between language versions means that the value of the literal interpretation of the provision must be played down. (46)

Second, the Commission rejects the argument that the exclusion applies to situations in which a broadcaster provides one of its traditional services and, therefore, cannot take on the role of contracting authority. In the Commission’s submission, that is an unfounded claim which, moreover, leads to absurd outcomes which are incompatible with the functioning of the audiovisual services market. (47)

The Commission contends that, if the legislature had wished to apply the exclusion in the terms put forward by the Czech Republic, it would have been pointless to add the expression ‘by broadcasters’. Further, if that expression referred to ‘programme material intended for broadcasting’, it would lead to an illogical situation in the case of online broadcasting: where a contracting authority is not a broadcaster, it would be able to award directly a contract for the production of a programme intended for broadcasting by a (television or radio) broadcaster, but not if it wished to produce an identical programme to be broadcast online. (48)

Unlike the first part of its ground of appeal, in the second part, the Czech Republic specifies which paragraphs of the judgment under appeal it considers to be open to criticism. However, as I shall explain below, its criticisms cannot lead to the success of the ground of appeal because the conclusion which the General Court ultimately reached in this respect is correct.

It is difficult to find a provision of EU law in which the meaning varies so radically depending on the language in which it has been drafted.

In accordance with the Spanish version of Article 16(b) of Directive 2004/18, it follows in the light of the syntactical construction of the sentence that: (a) ‘la compra, el desarrollo, la producción o la coproducción de programas destinados a la radiodifusión’ refers as a whole to the object of the excluded contracts; and that (b) ‘los contratos relativos al tiempo de radiodifusión’ also form part of that object.

The object of the excluded contracts is, therefore, twofold: on the one hand, the acquisition, development, production or co-production of programme material intended for broadcasting; on the other hand, broadcasting time.

As regards the subject of the actions which constitute the object of the excluded contracts, this is also twofold: on the one hand, broadcasters, the reference to which concerns specifically, as a whole, the acquisition, development, production or co-production of programme material intended for broadcasting; on the other hand, any other organisations, but only in relation to contracts for broadcasting time.

Therefore, the wording of the Spanish version of the provision lends weight to the interpretation advanced by the Commission and adopted by the General Court.

However, the contrary interpretation prevails if regard is had to the German version. (49) In that version, broadcasters (Rundfunk- oder Fernsehanstalten) are not referred to as subjects which acquire, develop, produce or co-produce programme material intended for broadcasting but as broadcasters of those programmes. The object of the excluded contracts continues to be twofold (because, in addition to the acquisition, development, production or co-production of programme material, there is also broadcasting time), but the subject is singular in both cases because it can be any organisation. The exclusion is defined only by object of the contract, which is exactly what the Czech Republic argues.

In my view, the French, (50) English, (51) Italian (52) and Portuguese (53) versions take the same line as the German version, although the General Court found that, in particular, the English and French versions can also be construed in the sense put forward by the Commission. (54)

In addition, as the General Court observed, (55) the Bulgarian and Slovenian versions do not even include the expression ‘intended for broadcasting’. (56) That omission increases the divergence between the wording of the different language versions and contributes, if any contribution were needed, to reducing the usefulness of a literal interpretation of the provision. (57)

The divergence between the language versions is so radical that it renders pointless any attempt to use the wording of one of those versions of the provision as a criterion for deciphering its true meaning. (58)

That was the view rightly taken by the General Court, which did not err in law when it pointed out that, in view of the unclear (it could even have said contradictory) nature of the different language versions, it could not give precedence to the interpretation proposed by the Czech Republic and it was necessary to rely on the remaining criteria for interpretation. (59)

The second part of the ground of appeal must therefore be dismissed.

Second, the Czech Republic questions the General Court’s position to the effect that the words ‘intended for broadcasting’ reflect the intention of referring explicitly to service contracts concluded by broadcasters regarding programmes intended for broadcasting by any electronic communications network, including the internet. In the Czech Republic’s submission, that result could be achieved without the need to include those words. (61)

Third, the Czech Republic states that the General Court deduced the aim of the exclusion from a decontextualised interpretation of the judgment in Bayerischer Rundfunk. (62)

The Commission maintains that, in accordance with recital 25 of Directive 2004/18, the aim of the exclusion is to take account of certain cultural and social reasons which render the application of procurement rules inappropriate.

In the Commission’s submission, broadcasters which are contracting authorities – that is, public media – supply a specific service of general interest the performance of which must comply with the principles of objectivity, independence, impartiality and neutrality. Therefore, broadcasters are in a singular position that is not comparable to that of other contracting authorities which, while they are not broadcasters, promote or produce programmes on a more or less occasional basis and without the need to have strict regard (like public media) to social, cultural, political, educational, artistic or similar reasons. For these other contracting authorities, the protection of the objectivity and pluralism provided by the public procurement rules is sufficient. (63)

As regards the term ‘intended for broadcasting’, the Commission argues that the Czech Republic’s position conflicts with the origins of the provision. As the judgment under appeal states, the inclusion of that term is intended to guarantee legal certainty in relation to online broadcasting. (64)

Finally, the Commission contends that the references by the General Court to the judgment in Bayerischer Rundfunk come within the context of the analysis of multiple aspects, while the operative part of the judgment is not based solely on that ruling. Furthermore, the Commission supports the General Court’s interpretation of that judgment. (65)

After pointing out that, in accordance with the case-law of the Court of Justice, exceptions to the material scope of EU law in the area of public contracts must be interpreted strictly, (66) the General Court, on the basis of the judgment in Bayerischer Rundfunk, found that the aim of the exclusion is to ensure fulfilment of the public service remit of public broadcasters.

I believe that that finding is, essentially, correct, even though (as the Czech Republic insists on arguing) recital 25 of Directive 2004/18 does not refer explicitly to broadcasters. Further, as regards the judgment in Bayerischer Rundfunk, although it is not fully conclusive for the purposes of the outcome of this appeal, it provides guidance for the interpretation of that exclusion, with which I shall deal below. (67)

Since exceptions to the scope of EU law must be interpreted strictly, it seems reasonable to conclude that the ‘aspects of cultural or social significance’ which, according to recital 25 of Directive 2004/18, mean that ‘an exception must therefore be made’ for public contracts for a particular service, are relevant only in respect of subjects characterised by the fact that they primarily or typically carry out such a service.

It is true that, de lege ferenda, there is nothing to preclude the exclusion from applying, in addition to broadcasters, to other public institutions (contracting authorities) which occasionally seek to conclude service contracts for the acquisition, development, production or co-production of programme material intended for broadcasting. These public institutions may have a legitimate interest in broadcasting or communicating to the public certain programme material which they consider to be necessary for cultural or social reasons.

However, the requirement that exceptions to the application of EU law must be interpreted strictly makes it necessary to find that the exclusion is not intended to give precedence to contracts that are essential to any public service remit ‘but rather, specifically, [to] the public service remit of public broadcasters’. (68)

To my mind, the subjective, rather than the objective, aspect was pre-eminent in the choice of the aim pursued by the exclusion. It was considered ‘inappropriate’ to apply the common rules of Directive 2004/18 to contracts more typical of contracting authorities which usually operate in the sphere of broadcasting by allowing them greater flexibility in that sphere.

I believe that that aim does not apply to other public bodies which have a much less frequent need to conclude service contracts for the acquisition (or development, production or co-production) of audiovisual programmes intended for broadcasting. The same grounds of inappropriateness do not exist in relation to such bodies in order to exempt them from the rules laid down in Directive 2004/18.

Moreover, as the Commission contends, (69) the option provided in Article 31(1)(b) of Directive 2004/18 remains available to ordinary public institutions: such institutions may award public contracts by a negotiated procedure without prior publication of a contract notice ‘when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator’.

The Czech Republic also argues that, even if the interpretation adopted by the General Court is accepted, there is no reason why the exclusion should not also encompass situations in which broadcasters are not contracting authorities but rather providers of programme material intended for broadcasting.

In that connection, I agree with the Commission that the possibility that broadcasters may take on the role of programme providers does not alter the finding that, as regards contracting authorities, the exclusion applies solely to broadcasters and not to any other contracting authorities, (70) which is what is at issue in this appeal.

Therefore, I believe that the purposive interpretation of the exclusion proposed by the General Court is not vitiated by any error of law. Accordingly, the third part of the ground of appeal must be dismissed.

The Czech Republic submits that the incorrectness of the General Court’s interpretation is demonstrated by the fact that the provision also lays down an exclusion for contracts relating to broadcasting time: in respect of such contracts, ‘there is no doubt that a broadcaster does not have to have the status of contracting authority but rather that of provider of the typical service, that is, its own broadcasting time’. (71)

Accordingly, the aim of Article 16(b) of Directive 2004/18, as a whole, cannot be limited to broadcasters which are contracting authorities, since at least one part of the provision does not permit such a restriction. That point confirms that ‘the activities of broadcasters must also be covered by the exclusion when a broadcaster itself provides the typical service and, in the context of a procurement procedure, it does not have the status of contracting authority but rather that of candidate’. (72)

The Commission counters that the Czech Republic’s arguments must be dismissed for the reasons set out in the judgment under appeal. The Commission also points out that, in the Czech Republic’s appeal, the meaning of footnote 3 of Annex II B to Directive 2004/18 is not in dispute, which confirms the General Court’s view. (73)

The Commission submits that the general legislative context confirms that view. Therefore, Directive 2004/17/EC (74) does not provide for the exclusion, even though contracting authorities in the sectors affected by that directive may also wish to conclude contracts for the production of programmes: for example, advertisements by public or semi-public companies which promote energy products and services are not unusual. (75)

As it did in the first part of the single ground of appeal, the Czech Republic does not cite precisely in this part either which aspects of the judgment under appeal it considers to be vitiated by an error of law. Moreover, the Czech Republic refers solely to paragraph 61 of that judgment in order to contend that the General Court did not discuss a particular assessment.

In case the Court of Justice takes the view that that defect does not render inadmissible this last part of the ground of appeal, I shall examine it from a dual perspective (a) regarding the complaint that the judgment under appeal adopted an interpretation incompatible with Article 16(b) of Directive 2004/18; and (b) regarding the interpretation of the exclusion within Directive 2004/18 as a whole.

(a) The exclusion in the context of Article 16(b) of Directive 2004/18

According to the General Court (paragraph 61 of the judgment under appeal), there is nothing to preclude the various contracts referred to under each of the different points of Article 16 of Directive 2004/18 from being defined in relation to their object, their contracting authority or their supplier.

In the same vein, the General Court explains (paragraph 59 of the judgment under appeal) that that also applies to all the points of the article as a whole, since some contracts are defined solely by reference to their object, (76) others by reference to their supplier, (77) and others, finally, by reference both to their object and to the conditions attaching to the contracting authority. (78)

In my view, the General Court’s response is correct and dispels any trace of inconsistency in the legislative scheme of Article 16 of Directive 2004/18 in general and Article 16(b) in particular.

The fact that, in accordance with that scheme, the exclusion does not cover situations where broadcasters do not participate as contracting authorities but as ‘candidates’ is different. That is, in reality, the crux of the Czech Republic’s complaint when it criticises the harm resulting from the General Court’s solution from the point of view of a systematic interpretation. (79)

In my view, however, that complaint relates above all to the purposive rationale of the interpretation adopted by the General Court, which I have already analysed.

In so far as is important for the present purposes, I believe that the judgment under appeal does not undermine the scheme ad intra of Article 16 of Directive 2004/18, in other words, its internal consistency. I shall therefore examine whether the approach in the judgment is also compatible with the directive as a whole.

(b) The exclusion in the general context of Directive 2004/18

The interpretation of Article 16(b) of Directive 2004/18 cannot be separated from the remainder of its legislative content. In particular, regard must be had to:

–first, recital 25, with which I have already dealt;

–second, footnote 3 of Annex II B to Directive 2004/18, in accordance with which ‘contracts for the acquisition, development, production or co-production of programmes by broadcasting organisations and contracts for broadcasting time’ are excluded from the term ‘public service contracts’ within the meaning of Article 1(2)(d) of the directive.

That footnote does not include the phrase ‘intended for broadcasting’, and therefore a reading of the footnote evokes the sense of Article 1(a)(iv) of Directive 92/50. As a result, the scope of the exclusion is confined to contracts awarded by broadcasters, as the Commission contends and the General Court agreed.

Since the unsurmountable discrepancies between the different language versions of Article 16(b) of Directive 2004/18 make it necessary to qualify its literal wording in order to establish the scope of the exclusion, it will be necessary to interpret recital 25 and footnote 3 of Annex II B in a consistent matter.

In my opinion, the footnote (whose legislative value is identical to that of the rest of Directive 2004/18) leaves no room for doubt: only contracts awarded by broadcasting organisations are excluded. Is that footnote irreconcilable with recital 25 or is it possible to find a solution which harmonises both of them? If that were the case, a systematic interpretation of recital 25 and footnote 3 would lead to adopting the meaning which is common to both.

The Czech Republic rightly argues that recital 25 of Directive 2004/18 essentially places the emphasis on the object, and not on the subject, of excluded contracts. As I have already pointed out, (80) that object relates to activities which are typical of and specific to broadcasters. That is why recital 25 indirectly limits the scope of the exclusion to those organisations in particular.

That was the view the General Court took in paragraph 39 of the judgment under appeal, relying on the judgment in Bayerischer Rundfunk.

Although that judgment did not concern the interpretation of the exclusion at issue here, (81) it examined the scope of the exclusion laid down in Article 1(a)(iv) of Directive 92/50. And in doing so it found that that directive did not apply ‘to public contracts for services which fall within the essential function of public broadcasting bodies, namely the creation and production of programme material, for the cultural and social reasons alluded to in the eleventh recital of the preamble to Directive 92/50 and, more explicitly, in recital 25 of the preamble to Directive 2004/18, which render that application inappropriate’. (82)

The Court of Justice found that that exclusion serves the purpose of ‘[guaranteeing] that the public broadcasting bodies can accomplish their public service remit with complete independence and impartiality’. (83) This means that the legislature took into account the essential functions of such bodies as a criterion for delimiting the scope of the exclusion.

That interpretation of recital 25 of Directive 2004/18 enables its wording to be regarded as consistent with that of footnote 3 of Annex II B and with that of the language versions which limit the scope of the exclusion by reference to the subject involved in the public procurement procedure and not its object.

Clearly, the interpretation of recital 25 proposed by the Czech Republic is also theoretically possible in isolation. However, the argument put forward by the Commission and accepted by the General Court is the one which best avoids conflict between that recital and footnote 3 of Annex II B. From the point of view of a systematic interpretation of Directive 2004/18, it is therefore appropriate to dismiss the fourth part of the single ground of appeal and, with it, the appeal in its entirety.

In accordance with Article 138(1) of the Rules of Procedure, applicable to the appeal under Article 184(1) of those rules, I propose that the Court order the Czech Republic to pay the costs.

VII. Conclusion

In the light of the foregoing considerations, I propose that the Court:

–Dismiss the appeal;

–Order the Czech Republic to pay the costs.

—

(1) Original language: Spanish.

(2) Directive 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).

(3) European Regional Development Fund and European Social Fund.

(4) Case T‑629/17, Czech Republic v Commission (not published, EU:T:2019:596; ‘the judgment under appeal’).

(5) To avoid repetition, I shall refer to it below as the ‘exclusion’ without further adjectives.

(6) Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18 (OJ 2014 L 94, p. 65).

(7) See point 53 et seq. below.

(8) Council Directive of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

(9) Council Regulation of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

(10) Paragraphs 29 and 30 of the judgment under appeal.

(11) Judgment of 13 December 2007 (C‑337/06, EU:C:2007:786; ‘judgment in Bayerischer Rundfunk’).

(12) Paragraph 39 of the judgment under appeal.

(13) Paragraphs 46 and 47 of the judgment under appeal.

(14) Paragraph 48 of the judgment under appeal.

(15) Paragraph 49 of the judgment under appeal [free translation].

(16) Paragraph 50 of the judgment under appeal [free translation].

(17) Paragraph 54 of the judgment under appeal [free translation].

(18) Paragraph 56 of the judgment under appeal.

(19) Paragraph 59 of the judgment under appeal.

(20) Paragraph 61 of the judgment under appeal.

(21) Paragraph 63 of the judgment under appeal.

(22) Paragraph 66 of the judgment under appeal.

(23) Paragraph 68 of the judgment under appeal.

(24) Paragraph 70 of the judgment under appeal.

(25) Paragraph 73 of the judgment under appeal.

(38) COM(2011) 896, final, Article 10(b).

(39) Italics added.

(40) There is not even any room for doubt in the German version which excludes ‘von Anbietern von audiovisuellen oder Hörfunkmediendiensten vergebene Aufträge über den Erwerb, die Entwicklung, Produktion oder Koproduktion von Sendematerial, das für audiovisuelle Mediendienste oder Hörfunkmediendienste bestimmt ist …’ Italics added.

(41) Italics added.

(42) Paragraph 22 of the appeal.

(43) Paragraphs 24 to 27 of the appeal.

(44) Paragraphs 28 to 30 of the appeal.

(45) Paragraphs 31 to 32 of the appeal.

(46) Paragraphs 30 to 38 of the Commission’s response.

(47) Paragraph 39 of the Commission’s response.

(48) Paragraphs 43 and 44 of the Commission’s response.

(49) According to that version, the exclusion applies to public service contracts for ‘Kauf, Entwicklung, Produktion oder Koproduktion von Programmen, die zur Ausstrahlung durch Rundfunk- oder Fernsehanstalten bestimmt sind, sowie die Ausstrahlung von Sendungen’.

(50)

(51)

(52)

(53)

(54) Paragraph 41 of the judgment under appeal, in which that ambivalence is also attributed to the Czech, Slovak, Greek, Hungarian, Lithuanian, Polish and Romanian versions. However, the Czech Republic argues in paragraph 25 of its appeal that some of those versions (Slovak, French, Greek, Hungarian, English, Lithuanian, Polish and Romanian) can only be interpreted in the manner advanced by it and adds to the list the Czech, Croatian and Dutch versions.

(55) Paragraph 41 of the judgment under appeal.

(56) The Czech Republic alleges in paragraph 27 of its appeal that the General Court relied on that fact to justify the rejection of its interpretation. In reality, the General Court agreed in paragraph 41 of the judgment under appeal that this is a ‘regrettable’ omission, as the Czech Republic itself had complained at the hearing. However, it is not the case that the General Court relied in support of its rejection of the literal interpretation put forward by the Czech Republic on what the latter describes as a ‘manifest error’. The General Court agreed that it is an error but its rejection was based on the fact that, in its view, most of the language versions are open to more than one interpretation, which means that the literal interpretation cannot be conclusive. The ‘errors’ in the Bulgarian and Slovenian versions merely confirm that the literal interpretation is of limited usefulness.

(57) Furthermore, the Commission has drawn attention to the terms in which the exclusion was transposed into Czech law. As the Commission states at paragraph 83 of its response, Article 18(2)(d) of Czech Law No 137/2006, concerning public contracts, provides that ‘with the exception of public contracts relating to defence and security, a contracting authority may not conclude public contracts under this law either where … the public contracts concluded by a contracting authority concern the acquisition, preparation, production or co-production of programme material intended for broadcasting or distribution, or public contracts for broadcasting time’ (italics added by the Commission). In the Commission’s view, the omission of the reference to ‘broadcasters’ and the insertion in its place of the words ‘public contracts concluded by a contracting authority’ enables a broader interpretation than that permitted by the exclusion. On the other hand, that interpretation would not be possible in the context of the transposition measures adopted by Member States which, as in the case of the Slovak Republic, were based on a language version of Directive 2004/18 which, in the Czech Republic’s submission, is open only to the interpretation put forward by the Czech Republic (paragraphs 85 and 86 of the Commission’s defence).

(58) According to settled case-law of the Court of Justice, a purely literal interpretation of one or more language versions of a multilingual text of EU law cannot simply prevail over the other versions, since the uniform application of EU rules requires that they be interpreted in the light of the versions drawn up in all the languages. See, for example, judgment of 26 September 2013, Commission v Spain (C‑189/11, EU:C:2013:587, paragraph 56).

(59) In accordance with the case-law of the Court of Justice, where there is a divergence between the various language versions of a European Union provision, that provision must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. For example, judgment of 24 October 2013, Drozdovs (C‑277/12, EU:C:2013:685, paragraph 39).

(60) Paragraph 35 of the appeal.

(61) Paragraphs 38 and 39 of the appeal.

(62) Paragraphs 40 to 53 of the appeal.

(63) Paragraphs 46 to 54 of the Commission’s response.

(64) Paragraphs 57 to 59 of the Commission’s response.

(65) Paragraphs 60 to 66 of the Commission’s response.

(66) Paragraph 29 of the judgment under appeal, which cites the judgment of 6 December 2017, Compania Naţională de Administrare a Infrastructurii Rutiere (C‑408/16, EU:C:2017:940, paragraph 45).

(67) See points 117 and 118 below.

(68) Paragraph 66 of the judgment under appeal [free translation].

(69) Paragraph 72 of the Commission’s response.

(70) Paragraph 68 of the Commission’s response.

(71) Paragraph 54 of the appeal.

(72) Paragraph 55 of the appeal.

(73) Paragraphs 78 and 79 of the Commission’s response.

(74) Directive of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

(75) Paragraphs 80 and 81 of the Commission’s response.

(76) Point (c): contracts for ‘arbitration and conciliation services’.

(77) Point (d): contracts for ‘financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, in particular transactions by the contracting authorities to raise money or capital, and central bank services’.

(78) Point (f): contracts for ‘research and development services other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority’.

(79) Paragraphs 54 and 55 of the appeal.

(80) Point 90 et seq. of this Opinion.

(81) In that case, it was a question of determining ‘whether the German public broadcasting bodies … are contracting authorities for the purposes of application of the Community rules on the award of public contracts’. Judgment in Bayerischer Rundfunk, paragraph 2.

(82) Ibidem, paragraph 62. Italics added.

(83) Ibidem, paragraph 63.

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