Article 97 of Law 4368/2016 (GG I 21/21.02.2016), as amended by Article 51 of Law 4384/2016 (GG I 78/26.04.2016), recently enabled the Ministry of Health and legal persons governed by public and private law subject to the Ministry to conclude individual works contracts for the provision of cleaning and custodial services without putting out a public tender and with the complete exclusion of legal persons from participation. The government is also seeking to extend this process of individual works contracts to the Ministry of Labour and the entities subject to it by introducing an amendment to an unrelated bill. Petitions for an order have already been filed before the Greek courts for the annulment and suspension of the conclusion of such contracts, and the Council of State is also expected to rule on the matter. At the same time, the process seems to be inconsistent with the European rules governing public contracts on cleaning and custodial services (Annex II to Directive 2004/18).
1. What measures will the Commission take in proposing procedures to protect the economic freedom of all economic operators in compliance with the principles of transparency and meritocracy?
2. What other measures will the Commission take to protect the commodity of hygiene in health-sensitive areas such as medical institutions and hospitals?
Answer given by Ms Bienkowska on behalf of the Commission
1. Article 97 of Law 4368/2016 (as amended Law 4384/2016) stipulates that the Greek Minister of Health (or the authorities/bodies under its supervision) may conclude contracts with individuals on the provision of cleaning, security and catering services.
Based on the wording of this provision, the Commission cannot conclude whether such an individual contract qualifies as an employment contract or a public service contract within the meaning of Directive 2014/24/EU(1). Any assessment on this matter requires examination of the terms of such contracts to understand their nature, elements and characteristics.
If such a contract constitutes an employment contract, its conclusion is excluded from the scope of Directive 2014/24/EU (Article 10(g)).
If, however, this contract constitutes a public service contract within the meaning of Directive 2014/24/EU (Article 2) and meets the applicable thresholds thereof (Article 4 and Article 5), its award will be subject to Directive 2014/24/EU. If this is the case, Article 19 of Directive 2014/24/EU prohibits the exclusion of economic operators ‘[…] solely on grounds that, under the law of the Member State […] they would be required to be either natural or legal persons’.
2. The Commission supports activities via the EU health programme to promote effective hygiene measures in hospitals and other parts of the health system in order to prevent and control infections(2). The Commission also monitors the implementation of the Council Recommendation on patient safety, including the prevention of healthcare associated infection(3). The European Centre for Disease Prevention and Control (ECDC) publishes a directory of resources on infection prevention which also covers aspects of hygiene(4).
(1) OJEU (2014) L 94/65
(2) OJEU (2014) L 86/1
(3) OJEU (2009) C151/1