Decision of the Higher Court of Justice of Valencia, June 29, 2023, (Roj: STSJ CV 3783/2023 – ECLI:ES: TSJCV:2023:3783), Spain
Article(s) in Directive 2014/24/EU: Art. 76 and 77
Topic: provision of services by non-profit organizations; submission to Directive 2014/24
Member State: ES
Court/rev. board: Higher Court of Justice of Valencia
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Transposition of Articles 76 and 77 of Directive 2014/24/EU is in Law 9/2017, of November 8, on Public Sector Contracts and regional legislation.
2. FACTS
The Asociación Estatal de Entidades de Servicios de Atención a Domicilio (ASADE) lodged an appeal against a Decree of the Comunitat Valenciana and requested a preliminary ruling before the CJEU to determine the compatibility of the Valencian regulation with Art. 77 of Directive 2014/24. As a result of that request, the judgment of the CJEU of 14 July 2022, C-436/20 (ASADE I)
Almost a year after the CJEU ruling (ASADE I), the Valencian Court has issued a judgment, partially upholding the appeal filed by ASADE.
3. JUDGMENT
The Higher Court of Justice of Valencia declares unlawful and void only four articles or parts of articles of the contested decree and dismisses the remainder of the action.
Thus, art. 23 of the Decree, on the duration of the “social concerts” is annulled, because the 4 years (plus extensions) is not in accordance with art. 77 Directive 2014/24 (three years). For this purpose, the Court of Valencia uses, in particular, the doctrine of the ASADE II case, C-676/20.
The Valencian regulation requiring “establishment of the entity in the locality where the service is to be provided” was also annulled on the grounds that it was contrary to European law, in accordance with the ruling of the STJUE of 14 July 2022, C-436/20, ASADE I.
The second paragraph of Article 13 is annulled, because it provided for the publication of calls for “social concerts” in the Diario Oficial de la Comuinitat Valencia. The Court considers that tenders equal to or exceeding 750,000 euros must comply with art. 75.1 Directive 2014/24.
Finally, with regard to Art. 22 (concerning the financing of the concerted action), the Court decided to annul only the phrase “guaranteeing the financial indemnity of the provider without including the industrial profit”, because such a guarantee is not in line with the imperative of budgetary efficiency in which the activity of non-profit organizations must be carried out.
It should be noted that the Court limits the scope of the annulment ruling exclusively to “concerted actions” equal to or exceeding 750,000 euros.
Link to the original decision: https://www.poderjudicial.es/search/AN/openDocument/afa9bd2f832a2e09a0a8778d75e36f0d/20230905
