| | ECT-43Freedom of establishment    
| ECT (2003) | Article 43 | Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital. |
| Case | Pte | Ref | Text | C-437/07
Italy | 42-45 | ECT-43
ECT-49
ECT-EquTran | 42 Tel qu’il est présenté dans la requête, le second grief est tiré d’une violation des règles applicables aux concessions, notamment des articles 43 CE et 49 CE, du principe de non-discrimination et de l’obligation de transparence, à l’exclusion des directives communautaires en matière de marchés publics. Au soutien de ce grief, la Commission cite exclusivement des arrêts de la Cour ayant pour objet des concessions et non pas des marchés publics.
43 Ce grief serait opérant dans l’hypothèse où l’opération en cause serait qualifiée de concession de travaux publics et non pas de marché public de travaux, contrairement à ce que la Commission fait valoir dans le cadre de son premier grief.
44 Or, la Cour a accueilli ce premier grief en constatant, au point 30 du présent arrêt, que l’opération en cause constitue un marché public de travaux et non pas une concession de travaux publics.
45 Dans ces conditions, il n’y a pas lieu pour la Cour de se prononcer sur le second grief invoqué par la Commission. | C-324/07
Coditel Brabant | 26-42 | ECT-12
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ECT-EquTran | 26 The application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as of the general principles of which they are the specific expression, is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority or authorities (see, to that effect, Teckal, paragraph 50, and Parking Brixen, paragraph 62).
27 As regards the second of those conditions, the national court stated in the order for reference that Brutélé carries out the essential part of its activities with its members. Accordingly, the scope of the first condition – that the control exercised over the concessionaire by the concession-granting public authority or authorities must be similar to that which the authority exercises over its own departments – remains to be examined.
28 In order to determine whether a concession-granting public authority exercises a control similar to that which it exercises over its own departments, it is necessary to take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the concessionaire in question is subject to a control which enables the concession-granting public authority to influence that entity’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions of that entity (see, to that effect, Parking Brixen, paragraph 65, and Case C-340/04 Carbotermo and Consorzio Alisei [2006] ECR I-4137, paragraph 36).
29 Of the relevant facts which can be identified from the order for reference, it is appropriate to consider, first, the holding of capital by the concessionaire, secondly, the composition of its decisionmaking bodies, and thirdly, the extent of the powers conferred on its governing council.
30 As regards the first of those facts, it should be borne in mind that, where a private undertaking holds a share of the capital of a concessionaire, this precludes the possibility for a concessiongranting public authority to exercise over that concessionaire a control similar to that which it exercises over its own departments (see, to that effect, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 49).
31 On the other hand, the fact that the concession-granting public authority holds, alone or together with other public authorities, all of the share capital in a concessionaire, tends to indicate – generally, but not conclusively – that that contracting authority exercises over that company a control similar to that which it exercises over its own departments (Carbotermo and Consorzio Alisei, paragraph 37, and Case C-295/05 Asemfo [2007] ECR I-2999, paragraph 57).
32 It is clear from the order for reference that, in the case before the referring court, the concessionaire is an inter-municipal cooperative society whose members are municipalities and an inter-municipal association whose members in turn are solely municipalities, and is not open to private members.
33 Secondly, it is clear from the file that Brutélé’s governing council consists of representatives of the affiliated municipalities, appointed by the general assembly, which is itself composed of representatives of the affiliated municipalities. In accordance with Article 12 of the Law on intermunicipal cooperatives, the representatives at the general assembly are appointed by the municipal council of each municipality from among the municipal councillors, the mayor and the aldermen.
34 The fact that Brutélé’s decision-making bodies are composed of representatives of the public authorities which are affiliated to Brutélé shows that those bodies are under the control of the public authorities, which are thus able to exert decisive influence over both Brutélé’s strategic objectives and significant decisions.
35 Thirdly, it is evident from the file that Brutélé’s governing council enjoys the widest powers. In particular, it fixes the charges. It also has the power – but is under no obligation – to delegate to the sector or sub-sector boards the resolution of certain matters particular to those sectors or subsectors.
36 The question arises as to whether Brutélé has thus become market-oriented and gained a degree of independence which would render tenuous the control exercised by the public authorities affiliated to it.
37 In this regard, it should be pointed out that Brutélé does not take the form of a société par actions, or a société anonyme, either of which is capable of pursuing objectives independently of its shareholders, but of an inter-municipal cooperative society governed by the Law on inter-municipal cooperatives. Moreover, in accordance with Article 3 of that Law, inter-municipal cooperatives are not to have a commercial character.
38 It seems to be apparent from that Law, which is supplemented by Brutélé’s statutes, that Brutélé’s object under its statutes is the pursuit of the municipal interest – that being the raison d’être for its creation – and that it does not pursue any interest which is distinct from that of the public authorities affiliated to it.
39 Subject to verification of the facts by the referring court, it follows that, despite the extent of the powers conferred on its governing council, Brutélé does not enjoy a degree of independence sufficient to preclude the municipalities which are affiliated to it from exercising over it control similar to that exercised over their own departments.
40 Those considerations are all the more applicable where decisions relating to the activities of the inter-municipal cooperative society are taken by the sector or sub-sector boards, within the limits of the delegated powers granted to them by the governing council. Where one or more affiliated municipalities are recognised as constituting a sector or sub-sector of that society’s activities, the control which those municipalities may exercise over the matters delegated to the sector or subsector boards is even stricter than that which they exercise in conjunction with all the members within the plenary bodies of that society.
41 It follows from the foregoing that, subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, the control exercised, via the statutory bodies, by the public authorities belonging to such an inter-municipal cooperative society over that society’s decisions may be regarded as enabling those authorities to exercise over that cooperative society control similar to that exercised over their own departments.
42 Accordingly, the answer to Questions 1 and 2 must be that: – Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality, and the concomitant obligation of transparency, do not preclude a public authority from awarding, without calling for competition, a public service concession to an inter-municipal cooperative society of which all the members are public authorities, where those public authorities exercise over that cooperative society control similar to that exercised over their own departments and where that society carries out the essential part of its activities with those public authorities; – Subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, where decisions regarding the activities of an inter-municipal cooperative society owned exclusively by public authorities are taken by bodies, created under the statutes of that society, which are composed of representatives of the affiliated public authorities, the control exercised over those decisions by the public authorities may be regarded as enabling those authorities to exercise over the cooperative society control similar to that exercised over their own departments. | C-220/06
Asociacion Profesional de Empresas | 73-88 | ECT-12
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ECT-86 | 73. Treaty provisions that specifically apply to public service contracts whose value does not reach the thresholds established by Directive 92/50 include, in particular, Articles 43 EC and 49 EC.
74. Besides the principle of non-discrimination on grounds of nationality, the principle of equal treatment of tenderers is also to be applied to such public service contracts even in the absence of discrimination on grounds of nationality (see, by analogy, Case C458/03 Parking Brixen [2005] ECR I8585, paragraph 48, and Case C410/04 ANAV [2006] ECR I3303, paragraph 20).
75. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the contracting public authority to verify that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the public service contract to be opened up to competition and the impartiality of procurement procedures to be reviewed (see, by analogy, Parking Brixen , paragraph 49, and ANAV , paragraph 21).
76. As a rule, a complete lack of any call for competition in the case of the award of a public service contract like that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency (see, by analogy, Parking Brixen , paragraph 50, and ANAV , paragraph 22).
77. Furthermore, it follows from Article 86(1) EC that the Member States must not maintain in force national legislation which permits the award of public service contracts without a call for tenders since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency (see, by analogy, Parking Brixen , paragraph 52, and ANAV , paragraph 23).
78. Admittedly, the combined effect of paragraphs (1) and (2) of Article 86 EC is that paragraph (2) of the Article may be relied upon to justify the grant by a Member State to an undertaking entrusted with the operation of services of general economic interest of special or exclusive rights which are contrary to, inter alia, the provisions of the Treaty, to the extent to which performance of the particular task assigned to that undertaking can be assured only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community (Case C340/99 TNT Traco [2001] ECR I4109, paragraph 52).
79. It is also necessary to point out that an undertaking like Correos, responsible by virtue of the legislation of a Member State for securing the universal postal service, constitutes an undertaking entrusted with the operation of services of general economic interest for the purposes of Article 86(2) EC (see, to that effect, TNT Traco , paragraph 53).
80. However, even on the assumption that the duty imposed on Correos, pursuant to Article 58 of Law 14/2000, to provide public authorities with services connected with its company objects could be considered to be an exclusive right for the benefit of Correos, the fact remains that Article 86(2) EC cannot be used to justify national legislation like that in issue in the main proceedings in so far as it concerns non-reserved postal services within the meaning of Directive 97/67.
81. As the Advocate General observed in paragraph 99 of his Opinion, Directive 97/67 implements Article 86(2) EC with regard to the possibility of reserving certain postal services to the provider of the universal postal service. As recalled in paragraph 67 of this judgment, the Court has already held that Member States do not have the option of extending the services reserved for the universal postal service provider pursuant to Article 7 of Directive 97/67, as such extension goes against the purpose of the Directive, which aims to establish gradual and controlled liberalisation in the postal sector.
82. In this context, it must be recalled that, within the framework of Directive 97/67, account is taken of whether, in order to enable the universal postal service to be carried out under economically acceptable conditions, it is necessary to reserve some postal services to the provider of that universal postal service (Case C162/06 International Mail Spain [2007] ECR I-0000, paragraph 50).
83. Therefore, as regards non-reserved postal services within the meaning of Directive 97/67, to which this analysis is limited, Article 86(2) EC cannot provide the basis for justifying an exclusive right for the provider of the universal postal service to provide such services to public authorities.
84. The Spanish Government submits, however, that the Cooperation Agreement cannot be subject to the rules governing the award of public service contracts because of its nature, which is instrumental rather than contractual. Correos is unable to refuse to enter into a cooperation agreement like the one in issue in the main proceedings, but is under an obligation to accept it.
85. In this respect, it must be noted that, as observed in paragraph 54 of this judgment, only if the Cooperation Agreement is in actual fact a unilateral administrative measure creating obligations solely for Correos and departing significantly from the normal conditions of a commercial offer made by that company - which it is for the Audiencia Nacional to establish - would it have to be held that such a contract falls outside the Community rules on the award of public service contract.
86. As regards the argument of the Spanish Government according to which the Cooperation Agreement cannot be subject to the rules governing public procurement because it concerns an in-house' situation, it is admittedly the case that, in the sphere of public service contracts, the application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression, is precluded if the control exercised by the contracting public authority over the entity to which the contract was awarded is similar to that which the authority exercises over its own departments and if that entity carries out the essential part of its activities with the controlling authority (see, by analogy, Parking Brixen , paragraph 62, and ANAV , paragraph 24).
87. However, as held in paragraph 63 of the present judgment, a cooperation agreement like the one in issue in the main proceedings does not fulfil the second of the conditions referred to in the preceding paragraph and therefore cannot, on that basis, fall outside the application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression.
88. Therefore, the answer to the question referred must also be that Articles 43 EC, 49 EC and 86 EC, as well as the principles of equal treatment, non-discrimination on grounds of nationality and transparency, must be interpreted as precluding legislation of a Member State that allows public authorities to entrust, without regard to the rules governing the award of public service contracts, the provision of non-reserved postal services within the meaning of Directive 97/67 to a public limited company whose capital is wholly state-owned and which, in that State, is the provider of universal postal service, in so far as the contracts to which that legislation applies
- do not reach the relevant threshold as provided for in Article 7(1) of Directive 92/50, and
- do not in actual fact constitute a unilateral administrative measure creating obligations solely for the provider of the universal postal service and departing significantly from the normal conditions of a commercial offer made by that company,
which are matters for the national court to establish. | T-125/06
Centro Studi Antonio Manieri | 79-80 | ECT-43
ECT-49 | 79 As regards the other arguments put forward by the applicant in connection with the plea under examination, in particular those alleging infringement of Articles 43 EC and 49 EC, the applicant once again merely refers to infringement of those provisions without putting forward any substantive reasoning in that regard. In the light of the principles referred to at paragraph 71 above, those arguments must therefore be disregarded as inadmissible.
80 The first plea must therefore be rejected in its entirety on the basis that it is unfounded in part and, as to the remainder, inadmissible. | C-412/04
Italy | 65-69 | ECT-43
ECT-49
ECT-249 | 65. First of all, the Community legislature expressly made a policy choice to exclude contracts under a certain threshold from the advertising regime which it introduced and therefore did not impose any specific obligation with respect to them.
66. Furthermore, where it is established that such a contract is of certain cross-border interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in the contract but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (see, to that effect, as regards Directive 92/50, Case C507/03 Commission v Ireland [2007] ECR I0000, paragraphs 30 and 31 and the case-law cited).
67. Since, as the Advocate General has observed, in point 56 of his Opinion, under Article 249 EC directives are binding as to the result to be achieved upon each Member State to which they are addressed and since the Community legislature excluded certain contracts from the scope of Directive 93/37, in particular by laying down thresholds, the Member States are not required to adopt, in the legislation transposing that directive, provisions recalling the obligation to comply with Articles 43 EC and 49 EC, which is applicable only in the circumstances set out in paragraph 66 of this judgment.
68. The fact that the Italian legislature did not adopt such provisions with respect to public contracts for infrastructure works executed by the holder of a building permit or an approved estate plan the value of which is below the threshold for application of Directive 93/37, for cases where the existence of a certain cross-border interest is established, does not call into question the applicability of Articles 43 EC and 49 EC to those contracts.
69. Therefore, the second complaint, in so far as it is based on the infringement of fundamental rules of the Treaty, must be dismissed. | C-412/04
Italy | 81-82 | ECT-43
ECT-49
ECT-249 | 81. It is settled caselaw, as stated in paragraph 66 of this judgment, that public service contracts falling outside the scope of Directive 92/50 which have been shown to be of certain cross-border interest remain subject to the fundamental freedoms laid down by the Treaty in the circumstances specified in the case-law set out in that paragraph.
82. Since the obligations arising from primary law that relate to equal treatment and transparency are therefore automatically applicable to those contracts - which are nevertheless excluded from the scope of Directive 92/50 on account of their value - in so far as the conditions laid down by that case-law are satisfied, there is no requirement for the national legislation transposing the directive to recall them expressly. | C-412/04
Italy | 94 | ECT-43
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ECT-249 | 94. In the second place, in the case of contracts in respect of which the value of the services concerned is below the threshold for application of Directives 92/50 and 93/38, as stated in paragraphs 68 and 82 of this judgment the absence from the applicable national provisions of any express reference to the application of the obligations arising from the Treaty does not mean that there is no need to comply with the principle of equal treatment and the obligation of transparency when awarding those contracts in so far as the conditions laid down by the case-law recalled in paragraph 66 of this judgment are satisfied. | | C-412/04 | 106 | C2A1-2.1.b=G2-5.7-impl
S2-3.2-impl
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ECT-49 | 106. Moreover, as far as concerns Articles 43 EC and 49 EC, those articles do not lay down a general obligation of equal treatment but contain, as is clear from the case-law cited in paragraph 66 of this judgment, a prohibition on discrimination on the basis of nationality. The Commission does not give any particulars regarding the existence of such discrimination in this complaint. 107. Therefore, the sixth complaint must be declared inadmissible. | C-410/04
ANAV | 18-19 | ECT-12
ECT-43
ECT-49 | 18. Notwithstanding the fact that public service concession contracts are excluded from the scope of Directive 92/50, replaced by Directive 2004/18, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, to that effect, Case C324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 60; Case C231/03 Coname [2005] ECR I-0000, paragraph 16, and Parking Brixen , paragraph 46).
19. The provisions of the Treaty which are specifically applicable to public service concessions include, in particular, Article 43 EC and Article 49 EC (Parking Brixen , paragraph 47). | C-410/04
ANAV | 20-23 | S2-3.2-impl
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ECT-86 | 20. Besides the principle of non-discrimination on grounds of nationality, the principle of equal treatment of tenderers is also to be applied to public service concessions even in the absence of discrimination on grounds of nationality (Parking Brixen , paragraph 48).
21. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed (see, to that effect, Telaustria and Telefonadress , paragraphs 61 and 62, and Parking Brixen , paragraph 49).
22. Theoretically, a complete lack of any call for competition in the case of the award of a public service concession such as that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency (Parking Brixen , paragraph 50).
23. Furthermore, it follows from Article 86(1) EC that the Member States must not maintain in force national legislation which permits the award of public service concessions without their being put out to competition since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency (Parking Brixen , paragraph 52). | C-410/04
ANAV | 24-33 | ECT-12
ECT-43
ECT-49 | 24. However, in the field of public service concessions, the application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression, is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority (Parking Brixen , paragraph 62).
25. National legislation which reproduces literally the wording of the conditions specified in the preceding paragraph, as does Article 113(5) of Legislative Decree No 267/2000 as amended by Article 14 of Decree Law No 269/2003, theoretically complies with Community law, with the proviso that the interpretation of that legislation must also comply with the requirements of Community
26. It should be made clear that, since it is a matter of a derogation from the general rules of Community law, the two conditions stated in paragraph 24 of this judgment must be interpreted strictly and the burden of proving the existence of exceptional circumstances justifying the derogation to those rules lies on the person seeking to rely on those circumstances (see Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 46, and Parking Brixen , paragraph 63).
27. According to the written observations submitted to the Court by AMTAB Servizio, the Municipality of Bari decided, on 27 December 2002, to transfer 80% of the shares it owned in the capital of that company and, on 21 May 2004, it decided to initiate for that purpose the call for tenders in order to select the majority private partner. That information was confirmed by ANAV at the hearing before the Court.
28. However, at the same hearing, the Municipality of Bari stated that it had altered its intention to transfer part of its shareholding in the capital of AMTAB Servizio. On 13 January 2005, it decided not to act on its previous decision and not to privatise that company. That decision was not put in evidence in the file before the national court since it was taken after the decision to refer.
29. It is a matter for that court, and not for the Court of Justice, to determine whether the Municipality of Bari intends to open the capital of AMTAB Servizio to private shareholders. However, in order to provide that court with the guidance it needs for the purpose of ruling on the proceedings before it, it is useful to provide the following clarification.
30. If, for the duration of the contract at issue in the main proceedings, the capital of AMTAB Servizio is open to private shareholders, the effect of such a situation would be the award of a public services concession to a semi-public company without any call for competition, which would interfere with the objectives pursued by Community law (see, to that effect, Case C29/04 Commission v Austria [2005] ECR I-0000, paragraph 48).
31. In fact, the participation, even as a minority, of a private undertaking in the capital of a company in which the concession-granting public authority is also a participant excludes in any event the possibility of that public authority exercising over such a company a control similar to that which it exercises over its own departments (see, to that effect, Stadt Halle and RPL Lochau , paragraph 49).
32. Therefore, in so far as the concessionaire is a company which is open, even in part, to private capital, that fact precludes it from being regarded as a structure for the in-house' management of a public service on behalf of the controlling local authority (see, to that effect, Coname , paragraph 26).
33. In the light of the foregoing considerations, the answer to the question referred must be that Articles 43 EC, 49 EC and 86 EC, and the principles of equal treatment, non-discrimination on grounds of nationality and transparency do not preclude national legislation which allows a public authority to award a contract for the provision of a public service directly to a company of which it wholly owns the share capital, provided that the public authority exercises over that company control comparable to that exercised over its own departments and that that company carries out the essential part of its activities with the controlling authority. | C-260/04
Italy | 23-38 | ECT-43
ECT-49
| 23. The Court then stated that the provisions of the Treaty applying to public service concessions, in particular Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality are specific expressions of the principle of equal treatment (see, to that effect, Parking Brixen , cited above, paragraph 48).
24. In that regard, the principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed (see, to that effect, Telaustria and Telefonadress, paragraphs 61 and 62, as well as Parking Brixen , paragraph 49, both cited above).
25. In the present case, it must be observed that the complete failure to invite competing bids for the purposes of granting licences for horse-race betting operations does not accord with Articles 43 and 49 EC, and, in particular, infringes the general principle of transparency and the obligation to ensure a sufficient degree of advertising. The renewal of the 329 old licences without a call for tenders precludes the opening up to competition of the licences and review of the impartiality of the procurement procedures.
26. In those circumstances, it is necessary to consider whether the renewal may be recognised as an exceptional measure, as expressly provided for in Articles 45 EC and 46 EC, or justified, in accordance with the case-law of the Court, for reasons of overriding general interest (see, to that effect, Case C-243/01 Gambelli and Others [2003] ECR I-13031, paragraph 60, and Placanica and Others , cited above, paragraph 45).
27. On that point, a certain number of reasons of overriding general interest have been recognised by the case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander on gaming, as well as the general need to preserve public order (Placanica and Others , cited above, paragraph 46).
28. Although the Member States are free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought, the restrictive measures that they impose must nevertheless satisfy the conditions laid down in the case-law of the Court as regards their proportionality (Placanica and Others , cited above, paragraph 48).
29. It should therefore be examined whether the renewal of the licences without inviting any competing bids is suitable for achieving the objective pursued by the Italian Republic and does not go beyond what is necessary in order to achieve that objective. In any case, the renewal must be applied without discrimination (see, to that effect, Gambelli and Others , paragraphs 64 and 65, and Placanica and Others , paragraphs 49).
30. It is common ground that the Italian Government approved the plan to reinforce the network of outlets collecting and taking bets on horse-races with a view to increasing the number of betting shops across the whole of Italy from 329 to 1 000. To carry out that plan, 671 new licences were awarded on completion of a tendering procedure, but the 329 existing old licences were renewed without competing bids having being invited.
31. In that connection, the Italian Government has not relied on any derogation, such as the ones expressly provided in Article 45 and 46 EC. By contrast, the Italian Government justifies its renewal of the licences without a tendering procedure by the need, in particular, to discourage the development of clandestine activities for collecting and allocating bets.
32. However, the Italian Government has not explained in its defence the basis on which it was necessary not to invite competing bids and has not submitted arguments to dispute the infringement alleged by the Commission. In particular, the Italian Government has not explained how the renewal of the existing licences without inviting any competing bids could prevent the development of clandestine activities in the horse-race betting sector, and has simply submitted that Law No 200/2003 and Decision No 107/2003 are in conformity with the requirements of Community law concerning public service concessions.
33. In that regard it is for the competent national authorities to show, first, that their legislation addresses an essential interest within the meaning of Articles 45 and 46 EC or an overriding requirement relating to the general interest as laid down in the case-law and, second, that that legislation conforms to the principle of proportionality (see, to that effect, Case C41/02 Commission v Netherlands, paragraph 47; Case C38/03 Commission v Belgium [2005], not published in the ECR, paragraph 20, and Case C255/04 Commission v France [2006] ECR I5251, paragraph 29).
34. Accordingly, it must be stated that the renewal of UNIRE's old licences without putting them out to tender was not an appropriate means of attaining the objective pursued by the Italian Republic, going beyond what was necessary in order to preclude operators in the horse-race betting sector from engaging in criminal or fraudulent activities.
35. In addition, as regards the grounds of an economic nature put forward by the Italian Government, such as the need to ensure continuity, financial stability and a proper return on past investments for licence holders, suffice it to point out that those cannot be accepted as overriding reasons in the general interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see, to that effect, Case C35/98 Verkooijen [2000] ECR I4071, paragraph 48, and Case C388/01 Commission v Italie [2003] ECR I721, paragraph 22).
36. It follows that none of the overriding reasons in the general interest pleaded by the Italian Government to justify the renewal of the 329 old licences without any competing bids being invited can be accepted.
37. Therefore, the Commission's application is well founded.
38. It follows from the above that, by renewing 329 licences for horse-race betting operations without inviting any competing bids, the Italian Republic failed to fulfil its obligations under Articles 43 and 49 EC and, in particular, infringed the general principle of transparency and the obligation to ensure a sufficient degree of advertising. | C-532/03
Ireland | 28-38 | ECT-43
ECT-49
ECT-226 | 28. As a preliminary point, it must be noted that, as is apparent from the form of order sought in the application initiating proceedings, the present action for failure to fulfil obligations does not concern the application of Directive 92/50, but relates to the issue as to whether the provision by DCC, without prior advertising, of emergency ambulance services is contrary to the fundamental rules of the Treaty and, in particular, to the freedom of establishment and the freedom to provide services enshrined in Articles 43 EC and 49 EC respectively.
29. It follows from the case-law of the Court that, without prejudice to the obligation of the Member States, under Article 10 EC, to facilitate the achievement of the Commission's tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied (Case C494/01 Commission v Ireland [2005] ECR I3331, paragraph 42), in an action for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C404/00 Commission v Spain [2003] ECR I6695, paragraph 26; and Case C135/05 Commission v Italy [2007] ECR I0000, paragraph 26).
30. The Commission claims that the maintenance of an agreement between DCC and the Authority, without any prior advertising, constitutes a breach of the rules of the Treaty and thereby of the general principles of Community law, in particular the principle of transparency.
31. In support of its case, the Commission takes the view that, even in the absence of a written contract detailing the terms of the services to be provided by DCC, the correspondence attached to a letter of 19 September 2002 shows that the scope of those services and the basis on which they are to be remunerated were considered by the parties and formalised in a draft agreement drawn up in June 1998. In particular, in a letter of 15 January 1999 attached to the letter of 19 September 2002, DCC's Finance Officer stated that the negotiations on the funding of the emergency ambulance service had resulted, in June 1998, in an agreement determining future charges by DCC to the Authority.
32. The Commission submits that it seems that DCC and the Authority agreed to enter into a service-level agreement and that a contract was drafted to that end. Therefore, according to the Commission, DCC provides emergency ambulance services at the behest of the Authority and for remuneration.
33. In that respect, it is apparent from the documents before the Court that national legislation empowers both the Authority and DCC to carry out emergency ambulance services. Under section 25 of the Fire Services Act 1981, a fire authority may carry out or assist in any operations of an emergency nature, whether or not a risk of fire is involved, and may accordingly make such provision for the rescue or safeguarding of persons and protection of property as it considers necessary for the purposes of that function. Thus, under section 9 of that Act, a local authority such as DCC is the responsible fire authority.
34. Bet ween 1899 and 1960, DCC provided emergency ambulance services in its capacity as a health authority. It subsequently acted in its capacity as a local authority and, under section 25 of the Fire Services Act 1981, provided those services through its permanent fire brigade service.
35. Consequently, it is conceivable that DCC provides such services to the public in the exercise of its own powers derived directly from statute, and applying its own funds, although it is paid a contribution by the Authority for that purpose, covering part of the costs of those services.
36. In that regard, as follows from the case-law cited in paragraph 29 of this judgment, it is, in the present case, incumbent upon the Commission to place before the Court the information needed to enable the Court to establish that a public contract has been awarded, and in so doing the Commission may not rely on any presumption in that regard.
37. However, neither the Commission's arguments nor the documents produced demonstrate that there has been an award of a public contract, since it is conceivable that DCC provides emergency ambulance services in the exercise of its own powers derived directly from statute. Moreover, the mere fact that, as between two public bodies, funding arrangements exist in respect of such services does not imply that the provision of the services concerned constitutes an award of a public contract which would need to be assessed in the light of the fundamental rules of the Treaty.
38. Since the Commission has not proved that Ireland has failed to fulfil its obligations under the Treaty, the action must be dismissed. | C-507/03
Ireland | 25-35 | ECT-43
ECT-49
ECT-226 | 25. For the services coming within the ambit of Annex I B to Directive 92/50, and subject to a subsequent evaluation as referred to in Article 43 of that directive, the Community legislature based itself on the assumption that contracts for such services are not, in the light of their specific nature, of cross-border interest such as to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender. For that reason, Directive 92/50 merely imposes a requirement of publicity after the fact for that category of services.
26. It is common ground, however, that the award of public contracts is to remain subject to the fundamental rules of Community law, and in particular to the principles laid down by the Treaty on the right of establishment and the freedom to provide services (see, to that effect, HI , paragraph 42).
27. In this regard, according to settled case-law, the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, inter alia, Case C380/98 University of Cambridge [2000] ECR I8035, paragraph 16; Case C19/00 SIAC Construction [2001] ECR I-7725, paragraph 32; and HI , paragraph 43).
28. Directive 92/50 pursues just such an objective. As the 20th recital in its preamble shows, it is designed to eliminate practices that restrict competition in general, and participation in contracts by other Member States' nationals in particular, by improving the access of service providers to procedures for the award of contracts (see HI , paragraph 44).
29. It follows that the advertising arrangement, introduced by the Community legislature for contracts relating to services coming within the ambit of Annex I B, cannot be interpreted as precluding application of the principles resulting from Articles 43 EC and 49 EC, in the event that such contracts nevertheless are of certain cross-border interest.
30. Also, in so far as a contract relating to services falling under Annex I B is of such interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but which are located in other Member States (see, to that effect, Telaustria and Telefonadress , paragraphs 60 and 61, and Case C231/03 Coname [2005] ECR I-7287, paragraph 17).
31. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (Coname , paragraph 19 and case-law cited).
32. In those circumstances, it is for the Commission to establish that, notwithstanding the fact that the contract in question relates to services coming within the scope of Annex I B to Directive 92/50, that contract was of certain interest to an undertaking located in a different Member State to that of the relevant contracting authority, and that that undertaking was unable to express its interest in that contract because it did not have access to adequate information before the contract was awarded.
33. According to settled case-law, it is the Commisssion's responsibility to provide the Court with the evidence necessary to enable it to establish that an obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, to that effect, inter alia, Case C-434/01 Commission v United Kingdom [2003] ECR I13239, paragraph 21; Case C-117/02 C ommission v Portugal [2004] ECR I-5517, paragraph 80; and Case C-135/05 Commission v Italy [2007] ECR I-0000, paragraph 26), in this case a presumption that a contract relating to services coming within the scope of Annex I B to Directive 92/50 and subject to the rules described in paragraph 24 of this judgment necessarily is of certain cross-border interest.
34. In the present case, that evidence has not been provided by the Commission. A mere statement by it that a complaint was made to it in relation to the contract in question is not sufficient to establish that the contract was of certain cross-border interest and that there was therefore a failure to fulfil obligations.
35. The Court accordingly finds that, in entrusting the provision of social benefit payment services to An Post without undertaking any prior advertising, Ireland has not failed to fulfil its obligations under Articles 43 EC and 49 EC and the general principles of Community law in connection with a contract for the supply of such services. 36. The Commission's action must therefore be dismissed. | C-458/03
Parking Brixen | 44-50 | ECT-12
ECT-43
ECT-49
ECT-EquTran | 44. By its second question, the referring court is asking, in essence, whether the award of a public service concession without it being put out to competition is compatible with Community law, if the concessionaire is a company limited by shares resulting from the conversion of a special undertaking of a public authority, a company whose share capital is at the time of the award 100% owned by the concession-granting public authority, but whose administrative board enjoys all extensive powers of routine administration and can effect independently, without the agreement of the shareholders' meeting, certain transactions up to a value of EUR 5 million.
45. That question refers, first, to the conduct of the concession-granting authority in relation to the award of a specific concession and, second, to the national legislation which permits the award of such a concession without a call for tenders.
46. Notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, to that effect, Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 60, and Case C-231/03 Coname [2005] ECR I-0000, paragraph 16).
47. The prohibition on any discrimination on grounds of nationality is set out in Article 12 EC. The provisions of the Treaty which are more specifically applicable to public service concessions include, in particular, Article 43 EC, the first paragraph of which states that restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are to be prohibited, and Article 49 EC, the first paragraph of which provides that restrictions on freedom to provide services within the Community are to be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
48. According to the Court's case-law, Articles 43 EC and 49 EC are specific expressions of the principle of equal treatment (see Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8). The prohibition on discrimination on grounds of nationality is also a specific expression of the general principle of equal treatment (see Case 810/79 Überschär [1980] ECR 2747, paragraph 16). In its case-law relating to the Community directives on public procurement, the Court has stated that the principle of equal treatment of tenderers is intended to afford equality of opportunity to all tenderers when formulating their tenders, regardless of their nationality (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraphs 33 and 54). As a result, the principle of equal treatment of tenderers is to be applied to public service concessions even in the absence of discrimination on grounds of nationality.
49. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed (see, to that effect, Telaustria and Telefonadress , cited above, paragraphs 61 and 62).
50. It is for the concession-granting public authority to evaluate, subject to review by the competent courts, the appropriateness of the detailed arrangements of the call for competition to the particularities of the public service concession in question. However, a complete lack of any call for competition in the case of the award of a public service concession such as that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency. | C-458/03
Parking Brixen | 51-52 | ECT-43
ECT-49
ECT-86.1 | 51. Furthermore, Article 86(1) EC provides that, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in the Treaty, in particular to those laid down in Articles 12 EC and 81 EC to 89 EC.
52. It follows therefrom that the Member States must not maintain in force national legislation which permits the award of public service concessions without their being put out to competition since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency. | C-458/03
Parking Brixen | 54-55 | ECT-43
ECT-49 | 54. First, Stadtwerke Brixen AG argues that Articles 43 EC to 55 EC do not apply to a situation such as that in the main proceedings, because it is a situation purely internal to a single Member State, given that Parking Brixen, Stadtwerke Brixen AG and the Gemeinde Brixen all have their seats in Italy.
55. That argument cannot be accepted. It is possible that, in the main proceedings, undertakings established in Member States other than the Italian Republic might have been interested in providing the services concerned (see, to that effect, Commission v Belgium , cited above, paragraph 33). In the absence of advertising and the opening to competition of the award of a public service concession such as that at issue in the main proceedings, there is discrimination, at least potentially, against undertakings of the other Member States which are prevented from making use of the freedom to provide services and of the freedom of establishment provided for by the Treaty (see, to that effect, Coname , cited above, paragraph 17). | C-458/03
Parking Brixen | 56-61 | S2-1.c-impl
ECT-12
ECT-43
ECT-49 | 56. Secondly, the Italian Republic, Stadtwerke Brixen AG and the Gemeinde Brixen contend that the application of the rules of the Treaty and of the general principles of Community law to a situation such as that in the main proceedings is precluded by the fact that Stadtwerke Brixen AG is not an entity independent of that municipality. In support of that argument, they rely on the judgment in Case C-107/98 Teckal [1999] ECR I-8121, paragraphs 49 to 51.
57. In that regard, it is important to recall that, in Teckal , cited above, the Court held that Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) is applicable where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of goods.
58. As regards the existence of such a contract, the Court stated, in paragraph 50 of the judgment in Teckal , that, in accordance with Article 1(a) of Directive 93/36, it is in principle sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
59. The Court has confirmed that the same considerations apply to Directive 92/50 on public service contracts and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) (see, respectively, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraphs 48, 49 and 52, and Case C-84/03 Commission v Spain [2005] ECR I-139, paragraph 39).
60. Those considerations are based on the premiss that the application of Directives 92/50, 93/36 and 93/37 depends on the existence of a contract concluded between two distinct persons (see Teckal , paragraphs 46 and 49). Yet the application of Articles 12 EC, 43 EC and 49 EC, as well as the principles of equal treatment, non-discrimination and transparency associated with them, does not depend on the existence of a contract. As a result, the considerations developed in the case-law cited in paragraphs 56 to 59 of this judgment do not apply automatically either to those provisions of the Treaty or to those principles.
61. Nevertheless, it must be held that those considerations may be transposed to the Treaty provisions and to the principles which relate to public service concessions excluded from the scope of the directives on public procurement. Indeed, in the field of public procurement and public service concessions, the principle of equal treatment and the specific expressions of that principle, namely the prohibition on discrimination on grounds of nationality and Articles 43 EC and 49 EC, are to be applied in cases where a public authority entrusts the supply of economic activities to a third party. By contrast, it is not appropriate to apply the Community rules on public procurement or public service concessions in cases where a public authority performs tasks in the public interest for which it is responsible by its own administrative, technical and other means, without calling upon external entities (see, to that effect, Stadt Halle and RPL Lochau , paragraph 48). | C-458/03
Parking Brixen | 62-72 | ECT-12
ECT-43
ECT-49
ECT-EquTran | 62. Consequently, in the field of public service concessions, the application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression, is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority. 63. Since it is a matter of a derogation from the general rules of Community law, the two conditions stated in the preceding paragraph must be interpreted strictly and the burden of proving the existence of exceptional circumstances justifying the derogation to those rules lies on the person seeking to rely on those circumstances (see Stadt Halle and RPL Lochau , paragraph 46).
64. It is appropriate to examine, first, whether the concession-granting public authority exercises a control over the concessionaire which is similar to that which it exercises over its own departments.
65. That assessment must take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the concessionaire in question is subject to a control enabling the concession-granting public authority to influence the c oncessionaire's decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions. 66. It is clear from the order for reference that under Article 1 of the statutes of the special undertaking, Stadtwerke Brixen, it was a municipal body whose specific function was the uniform and integrated provision of local public services. The municipal council laid down the general guidelines, allocated the start-up capital, ensured that any social costs were covered, monitored the operating results and exercised strategic supervision, the undertaking being guaranteed the necessary independence.
67. By contrast, Stadtwerke Brixen AG became market-oriented, which renders the municipality's control tenuous. Militating in that direction are:
(a) the conversion of Stadtwerke Brixen - a special undertaking of the Gemeinde Brixen - into a company limited by shares (Stadtwerke Brixen AG) and the nature of that type of company;
(b) the broadening of its objects, the company having started to work in significant new fields, particularly those of the carriage of persons and goods, as well as information technology and telecommunications. It must be noted that the company retained the wide range of activities previously carried on by the special undertaking, particularly those of water supply and waste water treatment, the supply of heating and energy, waste disposal and road building;
(c) the obligatory opening of the company, in the short term, to other capital;
(d) the expansion of the geographical area of the company's activities, to the whole of Italy and abroad;
(e) the considerable powers conferred on its Administrative Board, with in practice no management control by the municipality.
68. In fact, as regards the powers conferred on the Administrative Board, it is clear from the decision of reference that the statutes of Stadtwerke Brixen AG, particularly Article 18 thereof, give the board very broad powers to manage the company, since it has the power to carry out all acts which it considers necessary for the attainment of the company's objective. In addition, the power, under the said Article 18, to provide guarantees up to EUR 5 million or to effect other transactions without the prior authority of the shareholders' meeting shows that the company has broad independence vis-à-vis its shareholders.
69. The decision of reference also states that the Gemeinde Brixen has the right to appoint the majority of the members of Stadtwerke Brixen AG's Administrative Board. However, the referring court notes that the control exercised by the municipality over Stadtwerke Brixen AG is limited, essentially, to those measures which company law assigns to the majority of shareholders, which considerably attenuates the relationship of dependence which existed between the municipality and the special undertaking Stadtwerke Brixen, in the light, above all, of the broad powers possessed by Stadtwerke Brixen AG's Administrative Board.
70. Where a concessionaire enjoys a degree of independence characterised by elements such as those noted in paragraphs 67 to 69 of this judgment, it is not possible for the concession-granting public authority to exercise over the concessionaire control similar to that which it exercises over its own departments.
71. In those circumstances, and without it being necessary to consider the question whether the concessionaire carries out the essential part of its activities with the concession-granting public authority, the award of a public service concession by a public authority to such a body cannot be regarded as a transaction internal to that authority, to which the rules of Community law do not apply.
72. It follows that the reply to the second question referred for a preliminary ruling must be as follows: Articles 43 EC and 49 EC, and the principles of equal treatment, non-discrimination and transparency, are to be interpreted as precluding a public authority from awarding, without putting it out to competition, a public service concession to a company limited by shares resulting from the conversion of a special undertaking of that public authority, a company whose objects have been extended to significant new areas, whose capital must obligatorily be opened in the short term to other capital, the geographical area of whose activities has been extended to the entire country and abroad, and whose Administrative Board possesses very broad management powers which it can exercise independently. | C-234/03
Contse | 22-23 | S2-na [C3-1.4]
S2-na [C3-17]
ECT-43
ECT-49
ECT-234
ECT-EquTran | 22. As a preliminary point, it should be observed that the case in the main proceedings, contrary to the Spanish Government's submissions, appears to concern a public service contract and not a management contract for a service categorised as a concession. As Insalud stated at the hearing, the Spanish administration remains liable for all harm suffered on account of a failure of the service. That factor, which implies that there is no transfer of risks connected to the provision of the service concerned, and the fact that the service is paid for by the Spanish health administration, support that conclusion. It is, however, for the national court to determine whether in fact that is the case.
23. In any event, since the questions from the national court are based on the fundamental rules laid down by the Treaty, the following considerations will be helpful to it even if this contract is a public service concession not covered by Directive 92/50. It is in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty that the consequences in Community law of the award of such concessions must be examined (see, in particular, Case C-231/03 Coname [2005] ECR I-0000, paragraph 16). | C-234/03
Contse | 24-25 | ECT-43
ECT-49 | 24. Those fundamental rules, referred to by the national court, are of two kinds. Article 43 EC et seq. relates to freedom of establishment and Article 49 EC et seq. concerns freedom to provide services.
25. It must be recalled, as all the parties which lodged observations before the Court have done, that, disregarding Article 46 EC, the national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must, according to settled case-law, fulfil four conditions in order to comply with Article 43 EC and Article 49 EC: they must be applied in a non-discriminatory manner, they must be justified by imperative requirements in the general interest, they must be suitable for securing the attainment of the objective which they pursue, and they must not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; and Case C-243/01 Gambelli and Others [2003] ECR I-13031, paragraphs 64 and 65). | C-231/03
Coname | 15-22 | ECT-43
ECT-49
ECT-EquTran | 15. By its question, the referring court seeks, in essence, to ascertain whether Articles 43 EC and 49 EC preclude the direct award, that is to say without an invitation to tender, by a municipality of a concession for the management of the public gas-distribution service to a company with predominantly public capital in which that municipality holds a 0.97% share.
16. It must be remembered that the award of such a concession is not governed by any of the directives by which the Community legislature has regulated the field of public contracts. In the absence of any such legislation, the consequences in Community law of the award of such concessions must be examined in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty.
17. In that regard, it must be pointed out that, in so far as the concession in question may also be of interest to an undertaking located in a Member State other than the Member State of the Comune di Cingia de' Botti, the award, in the absence of any transparency, of that concession to an undertaking located in the latter Member State amounts to a difference in treatment to the detriment of the undertaking located in the other Member State (see, to that effect, Telaustria and Telefonadress , paragraph 61).
18. In the absence of any transparency, the latter undertaking has no real opportunity of expressing its interest in obtaining that concession.
19. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (see in particular, to that effect, Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 17, Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 27, and Case C294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 33 and the case-law cited).
20. With regard to the case in the main proceedings, it is not apparent from the file that, because of special circumstances, such as a very modest economic interest at stake, it could reasonably be maintained that an undertaking located in a Member State other than that of the Comune di Cingia de' Botti would have no interest in the concession at issue and that the effects on the fundamental freedoms concerned should therefore be regarded as too uncertain and indirect to warrant the conclusion that they may have been infringed (see, to that effect, Case C-69/88 Krantz [1990] ECR I-583, paragraph 11; Case C44/98 BASF [1999] ECR I-6269, paragraph 16; and the order in Case C431/01 Mertens [2002] ECR I7073, paragraph 34).
21. In those circumstances, it is for the referring court to satisfy itself that the award of the concession by the Comune di Cingia de' Botti to Padania complies with transparency requirements which, without necessarily implying an obligation to hold an invitation to tender, are, in particular, such as to ensure that an undertaking located in the territory of a Member State other than that of the Italian Republic can have access to appropriate information regarding that concession before it is awarded, so that, if that undertaking had so wished, it would have been in a position to express its interest in obtaining that concession.
22. If that is not the case, it must be concluded that there was a difference in treatment to the detriment of that undertaking. | C-231/03
Coname | 23-28 | ECT-43
ECT-49 | 23. With regard to the objective circumstances that could justify such a difference in treatment, it must be pointed out that the fact that the Comune di Cingia de' Botti has a 0.97% holding in the share capital of Padania does not, by itself, constitute one of those objective circumstances.
24. Even if the need for a municipality to exercise control over a concessionaire managing a public service may constitute an objective circumstance capable of justifying a possible difference in treatment, it must be pointed out that the 0.97% holding is so small as to preclude any such control, as the referring court itself observes.
25. At the hearing, the Italian Government submitted, in essence, that, in contrast to some large Italian cities, most municipalities lack the resources to provide, through in-house structures, public services such as that of gas distribution within their territory, and are therefore obliged to resort to structures, such as that of Padania, in the share capital of which several municipalities have holdings.
26. In that regard, it must be held that a structure such as that of Padania may not be treated in the same way as a structure through which a municipality or a city manages, on an inhouse basis, a public service. As is apparent from the file, Padania is a company open, at least in part, to private capital, which precludes it from being regarded as a structure for the in-house' management of a public service on behalf of the municipalities which form part of it.
27. The Court has not been made aware of any other objective circumstance capable of justifying any difference in treatment.
28. In those circumstances, the answer to the question referred must be that Articles 43 EC and 49 EC preclude, in circumstances such as those at issue in the main proceedings, the direct award by a municipality of a concession for the management of the public gasdistribution service to a company in which there is a majority public holding and in which the municipality in question has a 0.97% holding, if that award does not comply with transparency requirements which, without necessarily implying an obligation to hold an invitation to tender, are, in particular, such as to enable an undertaking located in the territory of a Member State other than that of the municipality in question to have access to appropriate information regarding that concession, so that, if that undertaking had so wished, it would have been in a position to express its interest in obtaining that concession. | C-20/01 & C-28/01
Germany | 60-63 | S2-3.2-impl
ECT-43
ECT-49
ECT-EquTran | 60 A contracting authority may take account of criteria relating to environmental protection at the various stages of a procedure for the award of public contracts (see, as regards the use of such criteria as criteria for awarding a contract relating to the management of the operation of a route in the urban bus network, Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, paragraph 57).
61 Therefore, it is not impossible that a technical reason relating to the protection of the environment may be taken into account in an assessment of whether the contract at issue may be awarded to a given supplier.
62 However, the procedure used where there is a technical reason of that kind must comply with the fundamental principles of Community law, in particular the principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom to provide services (see, to that effect, Concordia Bus Finland, paragraph 63).
63 The risk of a breach of the principle of non-discrimination is particularly high where a contracting authority decides not to put a particular contract out to tender. | C-92/00
Hospital | 42-43 | S2-3.2-impl
ECT-28
ECT-43
ECT-49 | 42 However, even though, apart from the duty to notify the reasons for the withdrawal of the invitation to tender, Directive 92/50 contains no specific provision concerning the substantive or formal conditions for that decision, the fact remains that the latter is still subject to fundamental rules of Community law, and in particular to the principles laid down by the EC Treaty on the right of establishment and the freedom to provide services.
43 In that regard, the Court has consistently held that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, inter alia, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16; Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 32).
44 Directive 92/50 pursues just such an objective. As the 20th recital in its preamble shows, it is designed to eliminate practices that restrict competition in general, and participation in contracts by other Member States' nationals in particular, by improving the access of service providers to procedures for the award of contracts.
45 The Court's case-law also demonstrates that the principle of equal treatment, which underlies the directives on procedures for the award of public contracts, implies in particular an obligation of transparency in order to enable verification that it has been complied with (see, to that effect, Case C-275/98 Unitron Scandinavia and 3-S v Ministeriet for Fødevarer, Landbrug og Fiskeri [1999] ECR I-8291, paragraph 31; Case C-324/98 Telaustria and Telefonadress v Telekom Austria [2000] ECR I-10745, paragraph 61).
46 In that respect, it should be noted that the duty to notify reasons for a decision to withdraw an invitation to tender, laid down by Article 12(2) of Directive 92/50, is dictated precisely by concern to ensure a minimum level of transparency in the contract-awarding procedures to which that directive applies and hence compliance with the principle of equal treatment.
47 It follows that, even though Directive 92/50 does not specifically govern the detailed procedures for withdrawing an invitation to tender for a public service contract, the contracting authorities are nevertheless required, when adopting such a decision, to comply with the fundamental rules of the Treaty in general, and the principle of non-discrimination on the ground of nationality, in particular (see, by way of analogy, concerning the conclusion of public service concessions, Telaustria and Telefonadress, paragraph 60). | C-272/91-R
Italy | 20-24 | ECT-43 [ex 52]
ECT-49 [ex 59]
ECT-243 [ex 186] | 20 As far as concerns, first, the requirement for a prima facie case, the Commission states that the infringement of Articles 52 and 59 of the EEC Treaty is manifest and that the situation here is wholly analogous to that underlying the abovementioned judgment in Case C-3/88. In particular, the concession of the computerization system in issue cannot be considered to involve the exercise of official authority within the meaning of the first paragraph of Article 55 of the Treaty. The Italian Government used the same argument concerning the contracts to develop data-processing systems for the public authorities which were in issue in Case C-3/88. The Court pointed out that the exception in Article 55 of the EEC Treaty from the freedom of establishment and the freedom to provide services must be restricted to activities which in themselves involve a direct and specific connection with the exercise of official authority, and declared that that was not the case for activities concerning the design, programming and operation of data-processing systems, which are activities of a technical nature.
21 The defendant claims that the concession of the lottery computerization system involves a real transfer of official powers to the concessionaire and cannot be treated in the same way as a contract to provide goods or services. That would be irreconcilable with the remuneration of the concessionaire by a percentage of the receipts. Gaming in the form of the lottery is under Italian legislation strictly reserved to the State and any activity relating to the lottery accordingly falls within the exercise of official powers, which for the purposes of the first paragraph of Article 55 of the EEC Treaty include not only powers to take decisions but also powers to organize, inspect or certify. The technical specification for the invitation to tender, filed by the defendant at the hearing, sets out the powers which the concession transfers to the concessionaire. They include in particular the taking of bets, since in order to be valid the lottery tickets must be issued by the concessionaire' s terminals installed at the collection points, and the determining of the winning tickets, to be done by the concessionaire' s record centres in each lottery area.
22 It should be noted first that the introduction of the computerized system in issue does not appear at first sight to change the various operations inherent in the lottery, as currently implemented according to the description in the specification filed by the defendant. On the face of it, no responsibility for any of these processes is transferred to the concessionaire. The collection points remain responsible for taking the bets, while the function of the concessionaire' s terminal is simply to record, to check automatically, and to transmit the data entered by the person in charge of the collection point who, according to the specification, must be able to correct the entry if there is an error and even cancel a ticket issued by the terminal. Similarly for the determination of the winning tickets, the Area Commission, an administrative body, retains responsibility for checking and validating the tickets.
23 Secondly, the services to be provided by the concessionaire of the lottery computerization system do not appear at first sight to differ from those entailed by the contracts for the development of data-processing systems for the public authorities at issue in Case C-3/88. Both cases involve developing computerized systems, providing the necessary hardware and software and operating the system. Although the lottery computerization system does not become State property until the term of the concession has expired, and the concessionaire' s remuneration consists of a share of the returns from operating the system, those factors are, on the face of it, irrelevant to the rules of Community law in issue.
24 It must therefore be held, taking account of the abovementioned judgment in Case C-3/88, that the Commission' s application does not appear at this stage to be without substance and that the requirement for a prima facie case is satisfied. |
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