A missed alternative to offer significant clarification on state support evaluation of procurement compliance and a few problematic ‘obiter dicta’ (C-28/23) — Methods to Crack a Nut – Tech Cyber Internet

On 17 October 2024, the European Courtroom of Justice (ECJ) delivered its preliminary ruling in NFŠ (C-28/23, EU:C:2024:893). The case was very attention-grabbing in three respects. First, in addressing some facets of the definition of public works contracts that hold arising in litigation in relation to comparatively complicated actual property transactions. Second, in addressing the consequences of a State support resolution on the evaluation of compliance with procurement legislation of the authorized construction used to implement the help bundle (together with the remedy from a procurement perspective of put choices as State support measures). Third, in addressing some limits on the ‘strategic’ use of treatments by contracting authorities which have breached procurement legislation. Furthermore, the case raised questions on the extent to which the events to a dispute resulting in a request for a preliminary reference can search to make clear in entrance of the ECJ the underlying circumstances of the dispute, the place the referring court docket has offered an incorrect or biased truth sample.

The case certainly raised attention-grabbing points and AG Campos Sánchez-Bordona delivered a promising Opinion that may have enabled the ECJ to offer useful clarifications in these respects. Nevertheless, in its NFŠ Judgment, the ECJ has not solely missed that chance but in addition made some sweeping statements that could possibly be problematic from the angle of the interplay between State support and procurement legislation.

I ought to from the outset disclose once more that I used to be concerned within the case. On the request of NFŠ, I wrote an skilled assertion addressing a number of the points earlier than the ECJ. This may occasionally, after all, have affected my view of the case. Nevertheless, I hope the feedback beneath will assist put the case in perspective and spotlight the necessity to take a number of the statements made by the Courtroom with greater than a pinch of salt. Really, given the peculiar circumstances of the NFŠ case, I argue that they have to be thought of as mere ‘obiter dicta’.

Background

I detailed the background of the case in my earlier touch upon the AG Opinion, however it’s useful to restate the important thing points right here.

In 2013 the Slovak Authorities granted State support to NFŠ to assist the development of the nationwide soccer stadium in Bratislava. Nevertheless, that State support bundle was not thought of enough and work didn’t begin. The State support measure was then revised in 2016 (the ‘grant settlement’), and the Slovak Authorities additionally granted NFŠ a unilateral put choice to promote the stadium to the State, beneath sure situations, in the course of the 5 years following its completion (the ‘settlement to enter right into a future gross sales settlement’ or ‘AFSA’).

Upon notification of the revised support bundle, the Fee declared these measures to be appropriate with the interior market by State support Resolution SA.46530. The State support Resolution made two necessary specific factors. First, it confirmed that the put possibility allowed NFŠ ‘to promote the Stadium again to the State in case it needs to take action. Ought to the beneficiary determine to train the choice, the Stadium would grow to be a property of the State’ (para 22). The State support Resolution additionally explicitly acknowledged that ‘The development works financed by means of the grant … can be topic to a aggressive course of, respecting the relevant procurement guidelines’ (para 8).

As soon as the stadium was constructed, NFŠ exercised the put possibility. The Slovak Authorities determined to not buy the stadium and it as an alternative challenged the compatibility with EU legislation of the State support bundle resulting from a basic breach of procurement legislation. The Slovak Authorities argued that the agreements have been null and void as a result of, mixed and from the outset, the grant settlement and AFSA would have had the unavoidable impact of getting the stadium constructed and transferred to the State, and thus coated up the unlawful direct award of a public works contract to NFŠ. This a part of the dispute involved the definition of ‘public works contracts’ beneath Directive 2014/24/EU (difficulty 1).

Relatedly, the Slovak Authorities acknowledged that regardless of containing specific references to the tendering of the development of the stadium, the State support Resolution can not preempt a contemporary evaluation of the compliance of this authorized construction with EU procurement guidelines. Maybe surprisingly, this place was supported by the European Fee in its submissions and on the listening to, the place the Fee denied that the express point out of compliance with procurement legislation fashioned an integral a part of its evaluation of the compatibility of the set of agreements with EU inner market legislation. This was a vital difficulty and the end result of this case might have supplied a lot wanted readability on the extent to which the Fee does, and certainly should, take procurement legislation into consideration within the evaluation of State support measures that contain the award of public contracts. This a part of the dispute thus considerations the impact of State support choices relating to help packages with a procurement aspect (difficulty 2).

Lastly, the Slovak State sought affirmation of the potential of having the ineffectiveness of the grant settlement and AFSA recognised ex tunc beneath home legislation, with out this being a breach of the Treatments Directive. This pertains to the ‘strategic’ use of procurement treatments by contracting authorities which have breached procurement legislation (difficulty 3).

On this publish, I’ll give attention to points 1 and a pair of.

Framing: Directive 2004/18/EC, Directive 2014/24/EU, or it doesn’t matter?

One preliminary difficulty value highlighting is that the timeline of the case created the difficulty whether or not the 2004 or the 2014 procurement Directive utilized. The preliminary grant settlement was signed in 2013, however the ultimate grant settlement and AFSA have been signed in 2016. On this level, regardless of taking reverse views (AG Campos targeted on the 2014 Directive, whereas the ECJ reasoned and determined in relation to the 2004 Directive), each the AG Opinion and the Judgment are aligned in contemplating that the selection of 1 Directive over the opposite would have restricted significance as a result of the ‘definitions of “public contract” and “public work contracts” are equal within the two directives’ (Opinion, para 42) and ‘the content material of Article 1(2)(b) of Directive 2004/18 corresponds in substance, as regards the execution of a piece similar to the necessities expressed by the contracting authority, to the content material of Article 2(1)(6)(c) of Directive 2014/24’ (Judgment, para 36).

Nevertheless, this might masks disagreement on the (implicit) relevance of the brand new definition of procurement inserted in Artwork 1(2) of Directive 2014/24, which defines it as ‘the acquisition via a public contract of works, provides or companies by a number of contracting authorities from financial operators chosen by these contracting authorities, whether or not or not the works, provides or companies are supposed for a public goal’ (emphasis added). AG Campos explicitly reasoned when it comes to the necessity for his or her to be an enforceable proper to accumulate the works (difficulty 1 beneath), whereas the ECJ determined to not use the phrases acquisition or purchase in its Judgment. This might sign a doubtlessly problematic inconsistency within the interpretation of the extent to which the requirement for there to be an ‘acquisition’ modulates the scope of software of the procurement guidelines. This may be significantly related in relation to the delineation of the scope of software of the procurement and State support guidelines, specifically in relation to the ‘de-risking’ of improvement initiatives, as additional mentioned beneath.

Problem 1: ‘acquisition’ and legally enforceable rights

As talked about above, the primary difficulty earlier than the Courtroom involved the edge to contemplate {that a} set or assortment of agreements represent an ‘acquisition’ and are thus coated by the scope of software of the EU public procurement guidelines, specifically the place a contractor which can be a State support beneficiary has a put choice to switch the works to the contracting authority.

In his Opinion, AG Campos supplied a abstract of the related case legislation (paras 52-54) and established that, in the end,

… to ensure that there to be a real works contract, it’s important that the profitable tenderer ought to particularly tackle the duty to hold out the works forming the topic of the acquisition and that that obligation must be legally enforceable. The contracting authority … should purchase the immovable property on which the works are carried out and, if obligatory, take authorized motion to compel the tenderer awarded the contract handy the property over to it, if it holds over using the works a authorized proper enabling it to make sure that they’re made obtainable to the general public’ (para 60).

AG Campos had vital considerations about the best way the factual sample of the case had been offered to the ECJ. He made it specific that ‘a studying of the order for reference and the following course of the preliminary ruling proceedings [did not allow] to kind a categorical opinion on the character of the “assortment of agreements” at difficulty’ (para 57), and identified at vital difficulties to find out what legally enforceable rights derived for the Slovak State, and that ‘it’s not clear what efficiency the Slovak State could declare from NFŠ beneath the grant settlement and the settlement to enter right into a future gross sales settlement, this being a premiss which it’s for the referring court docket to find out’ (para 58). AG Campos additionally burdened that nothing within the written or oral submissions ‘assist the inference that the Slovak State would have any proper to take authorized motion in opposition to NFŠ to compel it to construct the stadium ought to that enterprise in the end determine not to take action. The distinction is that, in that occasion, NFŠ wouldn’t have acquired the grant, or would have misplaced it, or can be obliged to pay it again. This in itself, nonetheless, has nothing to do with the efficiency of a works contract.’ (para 59), and that ‘all of the indications are that the settlement to enter right into a future gross sales settlement gave NFŠ the choice both to stay the proprietor of the stadium and proceed to function it (or assign its operation to 3rd events), or to switch it the Slovak State, if it suited it to take action’ (para 62).

This led AG Campos to conclude, on this difficulty, that

… there are numerous reservations to lift as in opposition to the classification of the “assortment of agreements” at difficulty as a real public works contract throughout the that means of Article 2(1)(6) of Directive 2014/24. Its classification as such or in any other case can be contingent upon the referring court docket’s ultimate evaluation of quite a lot of elements informing the adjudication of the case which it has itself failed to say with enough readability (para 70).

The Courtroom took a markedly completely different strategy.

The ECJ thought of that it ‘should take account, beneath the division of jurisdiction between the Courtroom and the nationwide courts, of the factual and legislative context, as described within the order for reference, through which the questions put to it are set’ (para 31). And, in relation to establishing the existence of the weather required for there to be a “public contract”, that ‘will probably be for the referring court docket to rule on that matter, having made the related findings in that regard’ (para 39). This was most likely to be anticipated and aligns with the overall case legislation on the matter.

Nevertheless, given the considerations on the shortage of readability of the evidentiary materials earlier than the ECJ, the absence of proof of the existence of a legally enforceable obligation to construct the stadium, the admission on the listening to by the Slovak Authorities that the put possibility was unilateral and discretionary (‘each NFŠ and the Ministry of Training expressed the identical view on this regard, recognising that the (unilateral) choice to promote was obtainable for NFŠ to train if it wished to take action’ fn 44 in AG Opinion), and the broader indications, together with within the State support Resolution, that there was no enforceable obligation in opposition to NFŠ as a result of the train of the put possibility was fully at its discretion, as burdened within the AG Opinion and as explicitly recognised by the ECJ too (‘Resolution SA.46530 states that NFŠ will stay the proprietor of the Slovak nationwide soccer stadium after its building, with out there being any obligation to switch possession of that stadium to the Slovak State’, para 58), the extra particular reasoning of the ECJ is stunning.

The Courtroom focuses specifically on whether or not the gathering of contracts have been concluded ‘for pecuniary curiosity’. It stresses that ‘the expression “for pecuniary curiosity” refers to a contract by which every of the events undertakes to offer one type of consideration in trade for one more. The synallagmatic nature of the contract is thus an important attribute of a public contract, which essentially ends in the creation of legally binding obligations for every of the events to the contract, the efficiency of which have to be legally enforceable’ (para 44). That is one other restatement of the case legislation and, given the framing of the problems above, one would have anticipated the ECJ to emphasize at this level that the referring court docket is the one that should set up whether or not there are such legally enforceable obligations, maybe stressing the weather that query such a discovering as specified by the AG Opinion.

This isn’t what the ECJ wrote in its Judgment. The Courtroom mentioned

… the place a contract contains an obligation to buy by a contracting authority with out an obligation to promote devolving on the opposite contracting occasion, that absence of an obligation to promote shouldn’t be essentially enough to rule out the synallagmatic nature of that contract and, subsequently, the existence of a public contract, since such a conclusion could, because the case could also be, be reached solely after an examination of all of the related elements para 45, emphasis added).

Within the current case, the referring court docket mentions the existence of reciprocal obligations between the Ministry of Training and NFŠ. As well as, that court docket states, inter alia, that the grant settlement imposes an obligation on the State to award the grant and the obligations [for NFŠ] to assemble the Slovak nationwide soccer stadium in accordance with the situations specified by the Ministry of Training, to finance at the least 60% of the development prices … (para 46).

…

a group of agreements binding a Member State to an financial operator and together with a grant settlement and an enterprise to buy, concluded with a view to constructing a soccer stadium, constitutes a ‘public works contract’ throughout the that means of that provision, the place that assortment of agreements creates reciprocal obligations between that State and that financial operator, which embody the duty to assemble that stadium in accordance with the situations specified by that State and a unilateral possibility in favour of that financial operator similar to an obligation on the a part of that State to buy that stadium, and grants the identical financial operator State support recognised by the Fee as being appropriate with the interior market (para 61, emphasis added).

Crucially, this conclusion of the ECJ fails to explicitly stress that ‘It’s for the referring court docket to find out whether or not these circumstances are current on this case’, which the AG Opinion did embody (para 96). Though the Courtroom does point out in passing that its issues are based mostly on parts which might be ‘topic to the verifications to be carried out by the referring court docket’ (para 55), by not making this specific within the reply to the query, the ECJ raises vital questions and potential difficulties as soon as the litigation proceeds on the home degree.

It’s also notable that the ECJ, regardless of basically saying the identical because the AG as soon as it’s clear that every one related findings of truth and their authorized implications have to be ascertained at home degree, selected to phrase its total conclusion as the alternative default as AG Campos.

AG Campos had proposed that the Courtroom ought to discover that the related guidelines

have to be interpreted as that means {that a} grant settlement and an settlement to enter right into a future gross sales settlement that are concluded between a State physique and a non-public enterprise and through which the non-public enterprise is granted public funds for the aim of the development of a sports activities infrastructure and is given the unilateral possibility of promoting it to the State, respectively, can’t be categorised as a public works contract if they don’t give rise to a legally enforceable obligation for the State to buy the infrastructure and if the State doesn’t derive a direct financial profit or has not had a decisive affect on the design of the work. It’s for the referring court docket to find out whether or not these circumstances are current on this case.

This formulation created the default rule that put choices will not be presumptively coated by the procurement guidelines, and burdened the necessity for the home court docket to positively discover software of the three cumulative standards determinative of an acquisition coated by the procurement guidelines (enforceable obligations, direct financial profit and decisive affect within the design).

Conversely, as talked about above, at para 61 the Courtroom discovered that the idea of ‘public works contract’  prolonged to a ‘assortment of agreements creates reciprocal obligations between that State and that financial operator, which embody the duty to assemble that stadium in accordance with the situations specified by that State and a unilateral possibility in favour of that financial operator similar to an obligation on the a part of that State to buy that stadium …’.

This could create the impression that put choices are presumptively coated by the procurement guidelines. Nevertheless, for my part, this is able to not be an satisfactory studying of the case. For 3 causes.

First, as a result of the reply given by the Courtroom in relation to the enforceable obligations is partially tainted by its failure to emphasize that that is topic to verification (as above).

Second, as a result of the ECJ additionally made fairly a peculiar distinction between the presumed obligation to construct the stadium and the discretionality of the put possibility when it burdened, in relation to the State support Resolution, that ‘though Resolution SA.46530 states that NFŠ will stay the proprietor of the Slovak nationwide soccer stadium after its building, with out there being any obligation to switch possession of that stadium to the Slovak State, that call doesn’t point out the absence of an obligation to assemble that stadium’ (para 58, emphasis added). This strongly means that the reply of the Courtroom is primarily targeted on the presumed obligation to construct the stadium.

Third, as a result of the ECJ’s strategy to assessing the extent to which a put possibility creates a direct financial profit for the contracting authority additionally raises some questions, as mentioned beneath.

Problem 1: Direct financial profit

A difficulty that had not featured prominently in AG Campos’ Opinion is whether or not the “assortment of agreements” would have been to the direct financial advantage of the contracting authority. The Opinion merely burdened that it was unclear whether or not ‘the Slovak State obtained a direct financial profit from the 2 agreements at difficulty … The State’s curiosity (and subsequent oblique profit) appears to be confined to the generic promotion of the nationwide sport’ (para 64).

Against this, the Courtroom engaged in a extra detailed dialogue, which it’s value reflecting in full:

… in a public works contract, the contracting authority receives a service consisting of the realisation of works which it seeks to acquire and which has a direct financial profit for it. Such an financial profit could also be established not solely the place it’s supplied that the contracting authority is to grow to be proprietor of the works or work which is the topic of the contract, but in addition in different conditions, specifically the place it’s supplied that the contracting authority is to carry the authorized proper over using these works, so that they are often made obtainable to the general public.

It’s obvious from the paperwork earlier than the Courtroom that, though the Slovak nationwide soccer stadium belongs to NFŠ, the grant settlement limits the correct to switch possession of that stadium to 3rd events, specifically by requiring prior written consent from the Slovak State so as to take action. Subsequently, that State has, with regard to this stadium, in essence, a proper of pre-emption with an intrinsic financial worth.

The financial profit might also lie within the financial benefits which the contracting authority could derive from the longer term use or switch of the work, in the truth that it contributed financially to the realisation of the work, or within the assumption of the dangers have been the work to be an financial failure (see … Helmut Müller, C‑451/08, EU:C:2010:168, paragraph 52 and the case-law cited).

Within the current case, as NFŠ acknowledged in its written observations and on the listening to, the choice obtainable to it beneath the enterprise to buy constitutes a assure in opposition to the industrial threat within the occasion that the Slovak nationwide soccer stadium proves to be commercially unviable for it. Thus, by enterprise to buy that stadium on the request of NFŠ, the contracting authority assumed all of the dangers have been the work to be an financial failure (paras 47-50, emphases added).

There are two factors value discussing right here. The primary one considerations the pre-emption proper. The second considerations the difficulty of the belief of dangers. Each are related from the angle of the interplay between State support and procurement legislation.

First, a proper of written authorization for a switch doesn’t quantity to a pre-emption proper. The State might have the correct to veto a switch with out this giving it precedence to accumulate the asset. It might merely be that the State has the correct to display for an appropriate proprietor of the stadium, however that the authorized penalties of denying the authorization don’t instantly quantity to the correct to accumulate as an alternative of the proposed purchaser. Rejection of authorisation could solely lead to NFŠ having to place ahead an alternate purchaser, or deciding to maintain the stadium. Furthermore, the ECJ doesn’t have interaction within the potential logic of the pre-emption proper from an financial viewpoint, which may have extra to do with the State’s curiosity in having a say over the switch of the stadium in doubtlessly closely subsidised situations, eg to make sure that there isn’t a circumvention of related units of fiscal guidelines, than in relation to a possible direct acquisition of the stadium. An absence of any such reasoning by the ECJ raises vital questions on the remedy of a (presumed) pre-emption proper as a direct financial profit.

Second, the best way the Courtroom engages with Helmut Müller is in itself problematic. Not least as a result of there appears to have been a deformation of the ‘Auroux method’ because it has migrated by means of the case legislation of the Courtroom. It’s value recalling that Auroux (C-220/05, EU:C:2007:31) involved a case involving the signing of an settlement between a municipality and a particular goal car with separate steadiness sheet to run a re-generation programme. That re-generation programme anticipated to make income from the sale of actual property to 3rd events. The settlement foresaw that, on the finish of the mission, ‘Any extra on that steadiness sheet is to be paid to the municipality. Moreover, the municipality mechanically turns into proprietor of all of the land and works to be transferred to 3rd events not but offered’ (para 18). That is the context through which the ‘Auroux method’ as enunciated in Helmut Müller must be understood. Nothing in Helmut Müller itself questions the correct understanding that there needs to be a direct optimistic financial profit arising for the contracting authority—if something, the alternative is true.

Nevertheless, in NFŠ, paras 49 and 50 of the Judgment appear to counsel that ‘the belief of the dangers have been the work to be an financial failure’ can in itself quantity to an financial profit. This makes no plain sense, as the belief of such dangers is clearly an financial disprofit or legal responsibility for the State. Furthermore, it doesn’t make sense within the context of Auroux itself, the place the financial profit consisted of ‘the financial benefits which the contracting authority could derive from the longer term use or switch of the work’, because the municipality was certainly entitled to potential income of the gross sales to 3rd events, in addition to in line to instantly purchase any unsold actual property. The explanation why the municipality might receive such advantages or, in different phrases, the consideration given to the developer consisted in its financing and the de-risking the mission—however that didn’t flip the financing or de-risking themselves into financial advantages!

It’s thus necessary to emphasize that the State has to derive a optimistic financial profit or benefit, similar to sharing within the revenues of the switch of property, or getting to make use of them. Within the NFŠ case, the Slovak State would neither take part within the proceeds from the sale of the stadium to a 3rd occasion, nor have the correct to make use of the stadium. Fairly which financial profit the Courtroom recognized is thus additionally unclear—if not plainly incorrect. That is necessary from the angle of the substantive interplay of procurement and State support guidelines, particularly taking into consideration that State support associated to infrastructure tends to indicate a mixture of measures regarding the financing and de-risking of improvement initiatives. If taking dangers was by itself to be thought of as acquiring an financial benefit, the potential subjection of a big variety of State support measures to procurement can be a transparent threat. It will, nonetheless, be at odds with the overall strategy of Directive 2014/24/EU. We should always not lose sight from the truth that, as AG Campos burdened in his Opinion ‘the mere grant of a State subsidy involving the motion of public funds … doesn’t in itself quantity to the conclusion of a public works contract. As recital 4 of Directive 2014/24 states, “the Union guidelines on public procurement will not be supposed to cowl all types of disbursement of public funds, however solely these aimed on the acquisition of works, provides or companies for consideration via a public contract”’ (para 48, emphasis within the unique). By the identical token, not all types of de-risking of infrastructure initiatives are essentially coated by public procurement legislation.

Problem 2: Prior approval of the State support measure

The second related difficulty on which the Judgment might have supplied readability considerations the extent to which the prior approval by the European Fee of a State support measure explicitly detailing a technique to adjust to EU public procurement legislation ought to bind future assessments of compliance with these guidelines. In that regard, the Opinion had been clear and bold, when AG Campos acknowledged that

The Fee can actively intervene in defence of competitors the place public procurement doesn’t adjust to the foundations laid down in, inter alia, Directive 2014/24 with a view to safeguard this goal. I don’t see any motive why it mustn’t achieve this when confronted with an examination of the viability of State support measures ensuing from agreements concluded by public authorities with non-public entities.

Specifically, it’s my view that the Fee couldn’t have failed to look at whether or not the shape through which the general public support granted to NFŠ was structured masked the existence of a public contract which ought to have been put out to tender. To my thoughts, it did so implicitly, which explains paragraph 8 of its Resolution SA.46530.

In brief, Resolution SA.46530 is predicated on the premiss that there was no obligation to switch possession of the stadium to the Slovak Republic. That assumption, to which I’ve already referred, can’t be known as into query by the referring court docket, which should respect the Fee’s evaluation of the elements figuring out the existence of State support (paras 77-79, emphasis added however underlined emphasis within the unique).

Against this, the ECJ fudged the difficulty by stating that

… it must be famous that it’s true that nationwide courts should chorus from taking choices working counter to a Fee resolution on the compatibility of State support with the interior market, the evaluation of which falls throughout the unique competence of that establishment, topic to overview by the Courts of the European Union … Nevertheless, assessments which could implicitly comply with from a choice of that establishment regarding State support can not, in precept, be binding on the nationwide courts in a dispute, similar to that in the principle proceedings, which is unrelated to the compatibility of that support with the interior market (para 59, emphasis added).

This deserves some feedback.

First, the suggestion by the ECJ that the truth that the evaluation of the compatibility with EU legislation would come up solely implicitly from the State support resolution and thus couldn’t be relied on is problematic. Primarily, as a result of it’s at odds with earlier case legislation and, specifically, with the place that the Fee can discharge its obligations to evaluate State support measure’s compatibility with different basic provisions of EU inner market legislation, together with secondary EU legislation, by implication. For instance, in Castelnou Energía, the Normal Courtroom accepted that the consideration of these guidelines might be implicit if the reasoning of the Fee refers to these different guidelines of secondary EU legislation they usually function in its evaluation (T-57/11, EU:T:2014:1021, at para 185). Subsequently, an implicit evaluation would suffice the place compliance with EU procurement guidelines embody a reference to these guidelines and it options within the Fee’s State support evaluation. This was the case in NFŠ, the place the Fee had explicitly acknowledged that ‘The development works financed by means of the grant … can be topic to a aggressive course of, respecting the relevant procurement guidelines’ (SA.46530, at para 8).

Second, this assertion involves create issues in home litigation the place an argument is made {that a} dispute in a case regarding State support considerations points ‘unrelated to the compatibility of that support with the interior market’, as it is going to many occasions be the case that compatibility shouldn’t be main motive why the measure is challenged, however the Fee could have taken it into consideration in its evaluation. If something, limiting the bindingness of Fee State support choices on this manner erodes the monopoly of software of State support guidelines given to the Fee in Artwork 108(3) TFEU.

Closing ideas: obiter dicta?

The evaluation above has hopefully proven how the NFŠ Judgment might be problematic. Nevertheless, I submit that, on a correct interpretation of the case and related precedent of their circumstances, a lot of the problematic statements have to be taken as obiter dicta as a result of they don’t seem to be backed by the info of the case and, subsequently, represent common statements made in passing by the Courtroom that can’t alter the related place of those points beneath EU legislation.

First, I’ve highlighted how it’s problematic for the NFŠ Judgment to counsel that put choices are presumptively coated by the procurement guidelines (para 61). It is because such suggestion is in actuality blended up with a presumption of an obligation to construct the infrastructure over which (on the very least) vital questions loom giant. To me, it appears clear that the Judgment accepts that it’s not the place beneath EU procurement legislation {that a} purely unilateral choice to promote that’s not enforceable by the contracting authority doesn’t meet the requirement to determine authorized obligations. Nevertheless, the formulation utilized by the ECJ and the omission of the precision that establishing whether or not any authorized obligations have been created within the case is for the nationwide courts, is complicated on this regard.

Second, and nonetheless on the difficulty of NFŠ’s switch rights, I’ve additionally highlighted how the suggestion {that a} requirement for written authorisation of a sale to a 3rd occasion implies a pre-emption proper that has intrinsic financial worth (para 48) can be problematic. On this, far more detailed authorized evaluation of the particular content material of rights arising from the requirement for such authorization can be required. And, as soon as once more, this is able to be for the nationwide courts.

Third, I’ve highlighted how a maximalistic and de-contextualised strategy to understanding that de-risking infrastructure initiatives (para 50) might in itself represent an financial profit would additionally very problematic. I’ve recommended {that a} correct understanding of the ‘Auroux method’ as enunciated in Helmut Müller should all the time indicate the existence of a optimistic financial profit, and that it can’t be conflated with the disprofit or legal responsibility accepted by the contracting authority or State support grantor as potential consideration for such (future) financial profit.

Lastly, I’ve highlighted how the suggestion that implicit assessments of compatibility with EU procurement legislation contained in State support choices can’t be relied on (para 59) can be problematic and at odds with present case legislation. Extra usually, a partitioning or limitation of the kinds of disputes over which a Fee State support resolution has binding results is undesirable.

Methods to get out of those potential issues, then?

The way in which ahead requires paying shut consideration to the circumstances of the NFŠ case.

On the primary difficulty, the ECJ itself was clear that the Fee had accepted that ‘Resolution SA.46530 states that NFŠ will stay the proprietor of the Slovak nationwide soccer stadium after its building, with out there being any obligation to switch possession of that stadium to the Slovak State’ (para 58) and the AG had documented that ‘each NFŠ and the Ministry of Training expressed the identical view on this regard, recognising that the (unilateral) choice to promote was obtainable for NFŠ to train if it wished to take action’ (AG at fn 44). It’s thus not in dispute that the put possibility didn’t create any legally enforceable obligation. Subsequently, a suggestion {that a} put possibility might presumptively create authorized obligations and thus be caught by the procurement guidelines has no relation to the info of the case and must be taken as obiter dictum.

In NFŠ, the core obligation the Courtroom takes difficulty with considerations the first obligation to construct the stadium. Nevertheless, on that difficulty, even when not clearly, the ECJ has not deviated from the EU legislation place that ascertaining the existence of authorized obligations is a matter for the home courts (para 31).

The second difficulty goes away on the premise of the identical precept. Merely put, the ECJ has no jurisdiction to evaluate that by advantage of NFŠ’s obligation to require prior written consent from the Slovak State to switch possession of that stadium to 3rd events ‘that State has, with regard to this stadium, in essence, a proper of pre-emption with an intrinsic financial worth’ (para 48). It is a matter for the nationwide courts and, consequently and at most, the ECJ assertion can solely be seen as an obiter dictum.

The third difficulty additionally considerations an obiter dictum strategy by the Courtroom. At its core, the Auroux line of case legislation is irrelevant to NFŠ to the extent that each circumstances might be clearly distinguished. In Auroux, the contracting authority was in line to share within the above agreed steadiness sheet advantages and/or to accumulate unsold actual property. In NFŠ, there was no proper to take part sooner or later switch of the stadium to 3rd events. Subsequently, all different statements as to how the precedent would apply to the case hand if the case at hand was completely different should even be thought of an obiter dictum.

Lastly, the place that implicit assessments of compatibility with EU legislation in State support choices can’t be relied on in relation to disputes about something apart from the compatibility of the help can be not of relevance of the case as a result of, in actuality, the “assortment of agreements” constituted the State support measure and difficult it for breach of basic guidelines of inner market legislation is nothing else than difficult its compatibility with the interior market. Subsequently, this assertion can be obiter dictum.

General, it appears to me that the NFŠ Judgment is problematic within the methods in fails to offer readability on the interplay between State support management and public procurement legislation. On the similar time, its authorized worth is restricted as a result of it does probably not deviate from established precedent and, within the areas the place it will counsel it does, it will achieve this in deviation from the info of the case at hand. It’s regrettable that the Courtroom determined to not comply with the a lot clearer and productive proposals superior by AG Campos on this occasion.