By Arne Müseler / www.arne-mueseler.com, CC BY-SA 3.0 de, https://commons.wikimedia.org/w/index.php?curid=149888646.
On 17 October 2024, the European Court of Justice (ECJ) delivered its preliminary ruling in NFŠ (C-28/23, EU:C:2024:893). The case was very interesting in three respects. First, in addressing some aspects of the definition of public works contracts that keep coming up in litigation in relation to relatively complex real estate transactions. Second, in addressing the effects of a State aid decision on the assessment of compliance with procurement law of the legal structure used to implement the aid package (including the treatment from a procurement perspective of put options as State aid measures). Third, in addressing some limits on the ‘strategic’ use of remedies by contracting authorities that have breached procurement law. Moreover, the case raised questions on the extent to which the parties to a dispute leading to a request for a preliminary reference can seek to clarify in front of the ECJ the underlying circumstances of the dispute, where the referring court has presented an incorrect or biased fact pattern.
The case indeed raised interesting issues and AG Campos Sánchez-Bordona delivered a promising Opinion that would have enabled the ECJ to provide helpful clarifications in those respects. However, in its NFŠ Judgment, the ECJ has not only missed that opportunity but also made some sweeping statements that could be problematic from the perspective of the interaction between State aid and procurement law.
I should from the outset disclose again that I was involved in the case. At the request of NFŠ, I wrote an expert statement addressing some of the issues before the ECJ. This may, of course, have affected my view of the case. However, I hope the comments below will help put the case in perspective and highlight the need to take some of the statements made by the Court with more than a pinch of salt. Actually, given the peculiar circumstances of the NFŠ case, I argue that they need to be considered as mere ‘obiter dicta’.
Background
I detailed the background of the case in my earlier comment on the AG Opinion, but it is helpful to restate the key issues here.
In 2013 the Slovak Government granted State aid to NFŠ to support the construction of the national football stadium in Bratislava. However, that State aid package was not considered sufficient and work did not start. The State aid measure was then revised in 2016 (the ‘grant agreement’), and the Slovak Government also granted NFŠ a unilateral put option to sell the stadium to the State, under certain conditions, during the five years following its completion (the ‘agreement to enter into a future sales agreement’ or ‘AFSA’).
Upon notification of the revised aid package, the Commission declared those measures to be compatible with the internal market by State aid Decision SA.46530. The State aid Decision made two important explicit points. First, it confirmed that the put option allowed NFŠ ‘to sell the Stadium back to the State in case it wishes to do so. Should the beneficiary decide to exercise the option, the Stadium would become a property of the State’ (para 22). The State aid Decision also explicitly stated that ‘The construction works financed through the grant … will be subject to a competitive process, respecting the applicable procurement rules’ (para 8).
Once the stadium was built, NFŠ exercised the put option. The Slovak Government decided not to purchase the stadium and it instead challenged the compatibility with EU law of the State aid package due to a fundamental breach of procurement law. The Slovak Government argued that the agreements were null and void because, combined and from the outset, the grant agreement and AFSA would have had the unavoidable effect of getting the stadium built and transferred to the State, and thus covered up the illegal direct award of a public works contract to NFŠ. This part of the dispute concerned the definition of ‘public works contracts’ under Directive 2014/24/EU (issue 1).
Relatedly, the Slovak Government stated that despite containing explicit references to the tendering of the construction of the stadium, the State aid Decision cannot preempt a fresh assessment of the compliance of this legal structure with EU procurement rules. Perhaps surprisingly, this position was supported by the European Commission in its submissions and at the hearing, where the Commission denied that the explicit mention of compliance with procurement law formed an integral part of its assessment of the compatibility of the set of agreements with EU internal market law. This was a crucial issue and the outcome of this case could have provided much needed clarity on the extent to which the Commission does, and indeed must, take procurement law into account in the assessment of State aid measures that involve the award of public contracts. This part of the dispute thus concerns the effect of State aid decisions relating to aid packages with a procurement element (issue 2).
Finally, the Slovak State sought confirmation of the possibility of having the ineffectiveness of the grant agreement and AFSA recognised ex tunc under domestic law, without this being a breach of the Remedies Directive. This relates to the ‘strategic’ use of procurement remedies by contracting authorities that have breached procurement law (issue 3).
In this post, I will focus on issues 1 and 2.
Framing: Directive 2004/18/EC, Directive 2014/24/EU, or it does not matter?
One preliminary issue worth highlighting is that the timeline of the case created the issue whether the 2004 or the 2014 procurement Directive applied. The initial grant agreement was signed in 2013, but the final grant agreement and AFSA were signed in 2016. On this point, despite taking opposite views (AG Campos focused on the 2014 Directive, whereas the ECJ reasoned and decided in relation to the 2004 Directive), both the AG Opinion and the Judgment are aligned in considering that the choice of one Directive over the other would have limited significance because the ‘definitions of “public contract” and “public work contracts” are equivalent in the two directives’ (Opinion, para 42) and ‘the content of Article 1(2)(b) of Directive 2004/18 corresponds in substance, as regards the execution of a work corresponding to the requirements expressed by the contracting authority, to the content of Article 2(1)(6)(c) of Directive 2014/24’ (Judgment, para 36).
However, this could mask disagreement on the (implicit) relevance of the new definition of procurement inserted in Art 1(2) of Directive 2014/24, which defines it as ‘the acquisition by means of a public contract of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose’ (emphasis added). AG Campos explicitly reasoned in terms of the need for their to be an enforceable right to acquire the works (issue 1 below), whereas the ECJ decided not to use the words acquisition or acquire in its Judgment. This could signal a potentially problematic inconsistency in the interpretation of the extent to which the requirement for there to be an ‘acquisition’ modulates the scope of application of the procurement rules. This can be particularly relevant in relation to the delineation of the scope of application of the procurement and State aid rules, in particular in relation to the ‘de-risking’ of development projects, as further discussed below.
Issue 1: ‘acquisition’ and legally enforceable rights
As mentioned above, the first issue before the Court concerned the threshold to consider that a set or collection of agreements constitute an ‘acquisition’ and are thus covered by the scope of application of the EU public procurement rules, in particular where a contractor which is also a State aid beneficiary has a put option to transfer the works to the contracting authority.
In his Opinion, AG Campos provided a summary of the relevant case law (paras 52-54) and established that, ultimately,
… in order for there to be a genuine works contract, it is essential that the successful tenderer should specifically take on the obligation to carry out the works forming the subject of the acquisition and that that obligation should be legally enforceable. The contracting authority … must acquire the immovable property on which the works are carried out and, if necessary, take legal action to compel the tenderer awarded the contract to hand the property over to it, if it holds over the use of the works a legal right enabling it to ensure that they are made available to the public’ (para 60).
AG Campos had significant concerns about the way the factual pattern of the case had been presented to the ECJ. He made it explicit that ‘a reading of the order for reference and the subsequent course of the preliminary ruling proceedings [did not allow] to form a categorical opinion on the nature of the “collection of agreements” at issue’ (para 57), and pointed out at significant difficulties to determine what legally enforceable rights derived for the Slovak State, and that ‘it is not clear what performance the Slovak State may claim from NFŠ under the grant agreement and the agreement to enter into a future sales agreement, this being a premiss which it is for the referring court to determine’ (para 58). AG Campos also stressed that nothing in the written or oral submissions ‘support the inference that the Slovak State would have any right to take legal action against NFŠ to compel it to build the stadium should that undertaking ultimately decide not to do so. The difference is that, in that event, NFŠ would not have received the grant, or would have lost it, or would be obliged to pay it back. This in itself, however, has nothing to do with the performance of a works contract.’ (para 59), and that ‘all the indications are that the agreement to enter into a future sales agreement gave NFŠ the option either to remain the owner of the stadium and continue to operate it (or assign its operation to third parties), or to transfer it the Slovak State, if it suited it to do so’ (para 62).
This led AG Campos to conclude, on this issue, that
… there are many reservations to raise as against the classification of the “collection of agreements” at issue as a genuine public works contract within the meaning of Article 2(1)(6) of Directive 2014/24. Its classification as such or otherwise will be contingent upon the referring court’s final assessment of a number of factors informing the adjudication of the case which it has itself failed to mention with sufficient clarity (para 70).
The Court took a markedly different approach.
The ECJ considered that it ‘must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set’ (para 31). And, in relation to establishing the existence of the elements required for there to be a “public contract”, that ‘it will be for the referring court to rule on that matter, having made the relevant findings in that regard’ (para 39). This was probably to be expected and aligns with the general case law on the matter.
However, given the concerns on the lack of clarity of the evidentiary material before the ECJ, the absence of evidence of the existence of a legally enforceable obligation to build the stadium, the admission at the hearing by the Slovak Government that the put option was unilateral and discretionary (‘both NFŠ and the Ministry of Education expressed the same view in this regard, recognising that the (unilateral) option to sell was available for NFŠ to exercise if it wished to do so’ fn 44 in AG Opinion), and the broader indications, including in the State aid Decision, that there was no enforceable obligation against NFŠ because the exercise of the put option was entirely at its discretion, as stressed in the AG Opinion and as explicitly recognised by the ECJ too (‘Decision SA.46530 states that NFŠ will remain the owner of the Slovak national football stadium after its construction, without there being any obligation to transfer ownership of that stadium to the Slovak State’, para 58), the more specific reasoning of the ECJ is surprising.
The Court focuses in particular on whether the collection of contracts were concluded ‘for pecuniary interest’. It stresses that ‘the expression “for pecuniary interest” refers to a contract by which each of the parties undertakes to provide one form of consideration in exchange for another. The synallagmatic nature of the contract is thus an essential characteristic of a public contract, which necessarily results in the creation of legally binding obligations for each of the parties to the contract, the performance of which must be legally enforceable’ (para 44). This is another restatement of the case law and, given the framing of the issues above, one would have expected the ECJ to stress at this point that the referring court is the one that needs to establish whether there are such legally enforceable obligations, perhaps stressing the elements that question such a finding as laid out in the AG Opinion.
This is not what the ECJ wrote in its Judgment. The Court said
… where a contract includes an obligation to purchase by a contracting authority without an obligation to sell devolving on the other contracting party, that absence of an obligation to sell is not necessarily sufficient to rule out the synallagmatic nature of that contract and, therefore, the existence of a public contract, since such a conclusion may, as the case may be, be reached only after an examination of all the relevant factors para 45, emphasis added).
In the present case, the referring court mentions the existence of reciprocal obligations between the Ministry of Education and NFŠ. In addition, that court states, inter alia, that the grant agreement imposes an obligation on the State to award the grant and the obligations [for NFŠ] to construct the Slovak national football stadium in accordance with the conditions specified by the Ministry of Education, to finance at least 60% of the construction costs … (para 46).
…
a collection of agreements binding a Member State to an economic operator and including a grant agreement and an undertaking to purchase, concluded with a view to building a football stadium, constitutes a ‘public works contract’ within the meaning of that provision, where that collection of agreements creates reciprocal obligations between that State and that economic operator, which include the obligation to construct that stadium in accordance with the conditions specified by that State and a unilateral option in favour of that economic operator corresponding to an obligation on the part of that State to purchase that stadium, and grants the same economic operator State aid recognised by the Commission as being compatible with the internal market (para 61, emphasis added).
Crucially, this conclusion of the ECJ fails to explicitly stress that ‘It is for the referring court to determine whether those circumstances are present in this case’, which the AG Opinion did include (para 96). Although the Court does mention in passing that its considerations are based on elements that are ‘subject to the verifications to be carried out by the referring court’ (para 55), by not making this explicit in the answer to the question, the ECJ raises significant questions and potential difficulties once the litigation proceeds at the domestic level.
It is also notable that the ECJ, despite fundamentally saying the same as the AG once it is clear that all relevant findings of fact and their legal implications need to be ascertained at domestic level, chose to phrase its overall conclusion as the opposite default as AG Campos.
AG Campos had proposed that the Court should find that the relevant rules
must be interpreted as meaning that a grant agreement and an agreement to enter into a future sales agreement which are concluded between a State body and a private undertaking and in which the private undertaking is granted public funds for the purpose of the construction of a sports infrastructure and is given the unilateral option of selling it to the State, respectively, cannot be classified as a public works contract if they do not give rise to a legally enforceable obligation for the State to purchase the infrastructure and if the State does not derive a direct economic benefit or has not had a decisive influence on the design of the work. It is for the referring court to determine whether those circumstances are present in this case.
This formulation created the default rule that put options are not presumptively covered by the procurement rules, and stressed the need for the domestic court to positively find application of the three cumulative criteria determinative of an acquisition covered by the procurement rules (enforceable obligations, direct economic benefit and decisive influence in the design).
Conversely, as mentioned above, at para 61 the Court found that the concept of ‘public works contract’ extended to a ‘collection of agreements creates reciprocal obligations between that State and that economic operator, which include the obligation to construct that stadium in accordance with the conditions specified by that State and a unilateral option in favour of that economic operator corresponding to an obligation on the part of that State to purchase that stadium …’.
This can create the impression that put options are presumptively covered by the procurement rules. However, in my view, this would not be an adequate reading of the case. For three reasons.
First, because the answer given by the Court in relation to the enforceable obligations is in part tainted by its failure to stress that this is subject to verification (as above).
Second, because the ECJ also made quite a peculiar distinction between the presumed obligation to build the stadium and the discretionality of the put option when it stressed, in relation to the State aid Decision, that ‘although Decision SA.46530 states that NFŠ will remain the owner of the Slovak national football stadium after its construction, without there being any obligation to transfer ownership of that stadium to the Slovak State, that decision does not mention the absence of an obligation to construct that stadium’ (para 58, emphasis added). This strongly suggests that the answer of the Court is primarily focused on the presumed obligation to build the stadium.
Third, because the ECJ’s approach to assessing the extent to which a put option creates a direct economic benefit for the contracting authority also raises some questions, as discussed below.
Issue 1: Direct economic benefit
An issue that had not featured prominently in AG Campos’ Opinion is whether the “collection of agreements” would have been to the direct economic benefit of the contracting authority. The Opinion simply stressed that it was unclear whether ‘the Slovak State obtained a direct economic benefit from the two agreements at issue … The State’s interest (and subsequent indirect benefit) seems to be confined to the generic promotion of the national sport’ (para 64).
By contrast, the Court engaged in a more detailed discussion, which it is worth reflecting in full:
… in a public works contract, the contracting authority receives a service consisting of the realisation of works which it seeks to obtain and which has a direct economic benefit for it. Such an economic benefit may be established not only where it is provided that the contracting authority is to become owner of the works or work which is the subject of the contract, but also in other situations, in particular where it is provided that the contracting authority is to hold the legal right over the use of those works, in order that they can be made available to the public.
It is apparent from the documents before the Court that, although the Slovak national football stadium belongs to NFŠ, the grant agreement limits the right to transfer ownership of that stadium to third parties, in particular by requiring prior written consent from the Slovak State in order to do so. Therefore, that State has, with regard to this stadium, in essence, a right of pre-emption with an intrinsic economic value.
The economic benefit may also lie in the economic advantages which the contracting authority may derive from the future use or transfer of the work, in the fact that it contributed financially to the realisation of the work, or in the assumption of the risks were the work to be an economic failure (see … Helmut Müller, C‑451/08, EU:C:2010:168, paragraph 52 and the case-law cited).
In the present case, as NFŠ stated in its written observations and at the hearing, the option available to it under the undertaking to purchase constitutes a guarantee against the commercial risk in the event that the Slovak national football stadium proves to be commercially unviable for it. Thus, by undertaking to purchase that stadium at the request of NFŠ, the contracting authority assumed all the risks were the work to be an economic failure (paras 47-50, emphases added).
There are two points worth discussing here. The first one concerns the pre-emption right. The second one concerns the issue of the assumption of risks. Both are relevant from the perspective of the interaction between State aid and procurement law.
First, a right of written authorization for a transfer does not amount to a pre-emption right. The State could have the right to veto a transfer without this giving it priority to acquire the asset. It could simply be that the State has the right to screen for a suitable owner of the stadium, but that the legal consequences of denying the authorization do not immediately amount to the right to acquire instead of the proposed buyer. Rejection of authorisation may solely result in NFŠ having to put forward an alternative buyer, or deciding to keep the stadium. Moreover, the ECJ does not engage in the possible logic of the pre-emption right from an economic viewpoint, which can have more to do with the State’s interest in having a say over the transfer of the stadium in potentially heavily subsidised conditions, eg to ensure that there is no circumvention of relevant sets of fiscal rules, than in relation to a potential direct acquisition of the stadium. An absence of any such reasoning by the ECJ raises significant questions on the treatment of a (presumed) pre-emption right as a direct economic benefit.
Second, the way the Court engages with Helmut Müller is in itself problematic. Not least because there seems to have been a deformation of the ‘Auroux formula’ as it has migrated through the case law of the Court. It is worth recalling that Auroux (C-220/05, EU:C:2007:31) concerned a case involving the signing of an agreement between a municipality and a special purpose vehicle with separate balance sheet to run a re-generation programme. That re-generation programme expected to make profits from the sale of real estate to third parties. The agreement foresaw that, at the end of the project, ‘Any excess on that balance sheet is to be paid to the municipality. Furthermore, the municipality automatically becomes owner of all the land and works to be transferred to third parties not yet sold’ (para 18). This is the context in which the ‘Auroux formula’ as enunciated in Helmut Müller needs to be understood. Nothing in Helmut Müller itself questions the proper understanding that there has to be a direct positive economic benefit arising for the contracting authority—if anything, the opposite is true.
However, in NFŠ, paras 49 and 50 of the Judgment seem to suggest that ‘the assumption of the risks were the work to be an economic failure’ can in itself amount to an economic benefit. This makes no plain sense, as the assumption of such risks is clearly an economic disbenefit or liability for the State. Moreover, it does not make sense in the context of Auroux itself, where the economic benefit consisted of ‘the economic advantages which the contracting authority may derive from the future use or transfer of the work’, as the municipality was indeed entitled to potential profits of the sales to third parties, as well as in line to immediately acquire any unsold real estate. The reason why the municipality could obtain such benefits or, in other words, the consideration given to the developer consisted in its financing and the de-risking the project—but that did not turn the financing or de-risking themselves into economic benefits!
It is thus important to stress that the State has to derive a positive economic benefit or advantage, such as sharing in the revenues of the transfer of assets, or getting to use them. In the NFŠ case, the Slovak State would neither participate in the proceeds from the sale of the stadium to a third party, nor have the right to use the stadium. Quite which economic benefit the Court identified is thus also unclear—if not plainly incorrect. This is important from the perspective of the substantive interaction of procurement and State aid rules, especially bearing in mind that State aid related to infrastructure tends to imply a mix of measures concerning the financing and de-risking of development projects. If taking risks was by itself to be considered as obtaining an economic advantage, the potential subjection of a significant number of State aid measures to procurement would be a clear risk. It would, however, be at odds with the general approach of Directive 2014/24/EU. We should not lose sight from the fact that, as AG Campos stressed in his Opinion ‘the mere grant of a State subsidy involving the movement of public funds … does not in itself amount to the conclusion of a public works contract. As recital 4 of Directive 2014/24 states, “the Union rules on public procurement are not intended to cover all forms of disbursement of public funds, but only those aimed at the acquisition of works, supplies or services for consideration by means of a public contract”’ (para 48, emphasis in the original). By the same token, not all forms of de-risking of infrastructure projects are necessarily covered by public procurement law.
Issue 2: Prior approval of the State aid measure
The second relevant issue on which the Judgment could have provided clarity concerns the extent to which the prior approval by the European Commission of a State aid measure explicitly detailing a strategy to comply with EU public procurement law should bind future assessments of compliance with those rules. In that regard, the Opinion had been clear and ambitious, when AG Campos stated that
The Commission can actively intervene in defence of competition where public procurement does not comply with the rules laid down in, inter alia, Directive 2014/24 in order to safeguard this objective. I do not see any reason why it should not do so when faced with an examination of the viability of State aid measures resulting from agreements concluded by public authorities with private entities.
In particular, it is my view that the Commission could not have failed to examine whether the form in which the public aid granted to NFŠ was structured masked the existence of a public contract which should have been put out to tender. To my mind, it did so implicitly, which explains paragraph 8 of its Decision SA.46530.
In short, Decision SA.46530 is based on the premiss that there was no obligation to transfer ownership of the stadium to the Slovak Republic. That assumption, to which I have already referred, cannot be called into question by the referring court, which must respect the Commission’s assessment of the factors determining the existence of State aid (paras 77-79, emphasis added but underlined emphasis in the original).
By contrast, the ECJ fudged the issue by stating that
… it should be noted that it is true that national courts must refrain from taking decisions running counter to a Commission decision on the compatibility of State aid with the internal market, the assessment of which falls within the exclusive competence of that institution, subject to review by the Courts of the European Union … However, assessments which might implicitly follow from a decision of that institution relating to State aid cannot, in principle, be binding on the national courts in a dispute, such as that in the main proceedings, which is unrelated to the compatibility of that aid with the internal market (para 59, emphasis added).
This deserves some comments.
First, the suggestion by the ECJ that the fact that the assessment of the compatibility with EU law would arise only implicitly from the State aid decision and thus could not be relied on is problematic. Mainly, because it is at odds with previous case law and, in particular, with the position that the Commission can discharge its obligations to assess State aid measure’s compatibility with other fundamental provisions of EU internal market law, including secondary EU law, by implication. For example, in Castelnou Energía, the General Court accepted that the consideration of those rules can be implicit if the reasoning of the Commission refers to those other rules of secondary EU law and they feature in its analysis (T-57/11, EU:T:2014:1021, at para 185). Therefore, an implicit assessment would suffice where compliance with EU procurement rules include a reference to those rules and it features in the Commission’s State aid analysis. This was the case in NFŠ, where the Commission had explicitly stated that ‘The construction works financed through the grant … will be subject to a competitive process, respecting the applicable procurement rules’ (SA.46530, at para 8).
Second, this statement comes to create problems in domestic litigation where an argument is made that a dispute in a case concerning State aid concerns issues ‘unrelated to the compatibility of that aid with the internal market’, as it will many times be the case that compatibility is not primary reason why the measure is challenged, but the Commission will have taken it into account in its assessment. If anything, limiting the bindingness of Commission State aid decisions in this way erodes the monopoly of application of State aid rules given to the Commission in Art 108(3) TFEU.
Final thoughts: obiter dicta?
The analysis above has hopefully shown how the NFŠ Judgment can be problematic. However, I submit that, on a proper interpretation of the case and relevant precedent in their circumstances, most of the problematic statements need to be taken as obiter dicta because they are not backed by the facts of the case and, therefore, constitute general statements made in passing by the Court that cannot alter the relevant position of these issues under EU law.
First, I have highlighted how it is problematic for the NFŠ Judgment to suggest that put options are presumptively covered by the procurement rules (para 61). This is because such suggestion is in reality mixed up with a presumption of an obligation to build the infrastructure over which (at the very least) significant questions loom large. To me, it seems clear that the Judgment accepts that it is not the position under EU procurement law that a purely unilateral option to sell that is not enforceable by the contracting authority does not meet the requirement to establish legal obligations. However, the formulation used by the ECJ and the omission of the precision that establishing whether any legal obligations were created in the case is for the national courts, is confusing in this regard.
Second, and still on the issue of NFŠ’s transfer rights, I have also highlighted how the suggestion that a requirement for written authorisation of a sale to a third party implies a pre-emption right that has intrinsic economic value (para 48) is also problematic. On this, much more detailed legal analysis of the specific content of rights arising from the requirement for such authorization would be required. And, once again, this would be for the national courts.
Third, I have highlighted how a maximalistic and de-contextualised approach to understanding that de-risking infrastructure projects (para 50) could in itself constitute an economic benefit would also very problematic. I have suggested that a proper understanding of the ‘Auroux formula’ as enunciated in Helmut Müller must always imply the existence of a positive economic benefit, and that it cannot be conflated with the disbenefit or liability accepted by the contracting authority or State aid grantor as potential consideration for such (future) economic benefit.
Finally, I have highlighted how the suggestion that implicit assessments of compatibility with EU procurement law contained in State aid decisions cannot be relied on (para 59) is also problematic and at odds with existing case law. More generally, a partitioning or limitation of the types of disputes over which a Commission State aid decision has binding effects is undesirable.
How to get out of these potential problems, then?
The way forward requires paying close attention to the circumstances of the NFŠ case.
On the first issue, the ECJ itself was clear that the Commission had accepted that ‘Decision SA.46530 states that NFŠ will remain the owner of the Slovak national football stadium after its construction, without there being any obligation to transfer ownership of that stadium to the Slovak State’ (para 58) and the AG had documented that ‘both NFŠ and the Ministry of Education expressed the same view in this regard, recognising that the (unilateral) option to sell was available for NFŠ to exercise if it wished to do so’ (AG at fn 44). It is thus not in dispute that the put option did not create any legally enforceable obligation. Therefore, a suggestion that a put option could presumptively create legal obligations and thus be caught by the procurement rules has no relation to the facts of the case and needs to be taken as obiter dictum.
In NFŠ, the core obligation the Court takes issue with concerns the primary obligation to build the stadium. However, on that issue, even if not clearly, the ECJ has not deviated from the EU law position that ascertaining the existence of legal obligations is a matter for the domestic courts (para 31).
The second issue goes away on the basis of the same principle. Simply put, the ECJ has no jurisdiction to assess that by virtue of NFŠ’s obligation to require prior written consent from the Slovak State to transfer ownership of that stadium to third parties ‘that State has, with regard to this stadium, in essence, a right of pre-emption with an intrinsic economic value’ (para 48). This is a matter for the national courts and, consequently and at most, the ECJ statement can only be seen as an obiter dictum.
The third issue also concerns an obiter dictum approach by the Court. At its core, the Auroux line of case law is irrelevant to NFŠ to the extent that both cases can be clearly distinguished. In Auroux, the contracting authority was in line to share in the above agreed balance sheet benefits and/or to acquire unsold real estate. In NFŠ, there was no right to participate in the future transfer of the stadium to third parties. Therefore, all other statements as to how the precedent would apply to the case hand if the case at hand was different must also be considered an obiter dictum.
Finally, the position that implicit assessments of compatibility with EU law in State aid decisions cannot be relied on in relation to disputes about anything other than the compatibility of the aid is also not of relevance of the case because, in reality, the “collection of agreements” constituted the State aid measure and challenging it for breach of fundamental rules of internal market law is nothing else than challenging its compatibility with the internal market. Therefore, this statement is also obiter dictum.
Overall, it seems to me that the NFŠ Judgment is problematic in the ways in fails to provide clarity on the interaction between State aid control and public procurement law. At the same time, its legal value is limited because it does not really deviate from established precedent and, in the areas where it would suggest it does, it would do so in deviation from the facts of the case at hand. It is regrettable that the Court decided not to follow the much clearer and productive proposals advanced by AG Campos in this instance.
