The Impact of the Spezzino Judgment for Third Sector Organisations

Abstract

This paper analyses the potential implications that the Spezzino case may have for third sector organisations wishing to take part in the public procurement of certain service contracts. The Court of Justice of the EU (CJEU) held as admissible in Spezzino to award directly and on a preferential basis some service contracts to not-for profit organisations compliant with certain requirements. This decision by the CJEU constitutes a major derogation of the principles of Articles 49 (freedom of establishment) and 56 (freedom of services) of the TFEU. The paper is structured around the requirements established by CJEU in Spezzino, the impact it may have on third sector organisations across the EU and its relationship going forward with Directive 2014/24/EU, particularly the new “light touch regime” for specific categories of contracts. This paper argues that the scope for impact on third sector organisations is smaller than anticipated at first glance. The exception created by Spezzino only applies to contracts subject to primary EU law, that is contracts with a cross-border interest but not covered by either Directive 2004/18/EC or Directive 2014/24/EU. Furthermore, the grounds for the exception need to be interpreted restrictively. In consequence, going forward it is arguable that it only applies to all emergency ambulance service contracts, as these are explicitly excluded from Directive 2014/24/EU, and urgent ambulance service contracts with a value under €750,000 and a cross-border interest.