On 19 January 2023, the Court of Justice handed down its judgment in Case C‑292/21, CNAE and others, on the interpretation of Directive 2006/123/EC. The request has been made in proceedings between, on the one hand, the Administración General del Estado (General State Administration, Spain), the Confederación National de Autoescuelas and the unión temporal de empresas (“UTE”) formed by CNAE-ITT-FORMASTER-ECT (together “CNAE”) and, on the other hand, the Ministerio Fiscal (Public Prosecutor’s Office) and the Asociación para la Defensa de los Intereses Comunes de las Autoescuelas (Audica) concerning the legal framework applicable to the provision of road safety awareness and training courses for the recovery of driving licence points.
The Directorate-General for Traffic published a call for tenders concerning the courses to be completed by drivers in order to recover driving licence points lost as a result of road traffic offences, whose contract was set out as a public service concession according to which the national territory was divided into five zones, with one of the five procurement lots corresponding to each one. On the ground that the award of the contract to run such road safety awareness and training courses by means of public service concession contracts was contrary to the freedom to provide services, Audica challenged the call for tenders at issue before the Tribunal Administrativo Central de Recursos Contractuales (Central Administrative Court for Contractual Appeals), which however dismissed its action.
Consequently, the latter brought an administrative appeal before the Sala de lo Contencioso-Administrativo de la Audiencia Nacional (Administrative Chamber of the National High Court), which upheld it and annulled the decision of the Central Administrative Court for Contractual Appeals as well as the call for tenders at issue. The General Administration and the CNAE, therefore, brought an appeal before the Tribunal Supremo (Supreme Court of Spain; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether European law, and in particular Article 15 of Directive 2006/123, must be interpreted as precluding national legislation under which contracts for the provision of road safety awareness and training courses for the recovery of driving licence points must be awarded by means of a public service concession.
According to the Court, the national legislation concerned constitutes both a quantitative and a territorial limit within the meaning of Article 15(2)(a) of Directive 2006/123, inasmuch as it requires the relevant territory to be divided into five large areas in which only one provider is authorised to supply the service concerned. Such a measure, therefore, can be authorised only if non-discriminatory, necessary and proportionate. In the current case, however, there appear to be measures that are less restrictive and capable of attaining the objective of improving road safety, while also being possible for such objective to be attained by an administrative authorisation scheme rather than using a public service which must be provided by means of a concession.