AG Campos Sánchez-Bordona: exclusion of broadcasting-related contracts from former public procurement applies only to contracts awarded by broadcasters
Today, Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion in Czech Republic v Commission (C-862/19 P), advising that the Court of Justice dismiss the appeal brought by the Czech Republic against the General Court’s judgment in T-629/17.
By the judgment under appeal, the General Court dismissed the action for annulment brought by the Czech Republic against Commission Implementing Decision C(2017) 4682 final of 6 July 2017. In this decision, the Commission found that Czech authorities should not have directly awarded a number of contracts, co-financed by funds from the ERDF and the ESF, to produce televised advertisements which would promote the use of European funds. According to the Commission, those awards could not be made under Article 16(b) of the Public Procurement Directive 2004/18, and it therefore made the appropriate financial correction.
Article 16(b) of Directive 2004/18 sets out that 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 contends that this exclusion applies to any contracting authority, while the Commission argues that it applies only to contracts awarded by broadcasters, which was not the situation in the case at hand.
Noting that the new Public Procurement Directive 2014/24 adopted the Commission’s position, AG Campos Sánchez-Bordona suggests that the appeal be dismissed in its entirety. The Opinion stresses that the case involves 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. For this reason, the AG considers that any attempt to use the wording of one of those versions of the provision as a criterion for deciphering its true meaning is pointless. According to the Opinion, an analysis of how the exclusion evolved, from Directive 92/50 to Directive 2014/24, which is now in force, via Directive 2004/18, which is applicable to the case at hand, enables the position defended by the Commission and adopted in the judgment under appeal to be accepted.
The Opinion is available here.