| | ECT-45Exercise of official authority    
| ECT (2003) | Article 45 | The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The Council may, acting by a qualified majority on a proposal from the Commission, rule that the provisions of this Chapter shall not apply to certain activities. |
| Case | Pte | Ref | Text | C-264/03
France | 34+49-51 | ECT-45
ECT-55 | 34. Finally, it is appropriate to point out that, so far as any given Member State is concerned, activities which in that State are connected, even occasionally, with the exercise of official authority do not come within the scope of Article 49 EC, by virtue of the first paragraph of Article 45 EC and Article 55 EC.
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49. Finally, it must be determined whether the agency agreement of delegated project contracting effects a transfer of official authority, as the French Government argues. The examination of that question presupposes that the fulfilment of the responsibilities in question involves, on the part of the contracting authority, direct participation in the exercise of official authority.
50. In that regard, the French Government has not asserted the existence of circumstances in which the contracting authority is responsible for a structure for the inhouse' management of a public service within the meaning of the Court's caselaw (see, to that effect, Case C107/98 Teckal [1999] ECR I8121, paragraph 50, and Coname , paragraph 26). Indeed, there is no suggestion that the principal exercises over the agent a control similar to that which it exercises over its own departments and that the agent carries out the essential part of its activities with the controlling public authority or authorities (see, to that effect, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I1, paragraph 49).
51. As regards tasks of administrative and technical assistance, such as defining the administrative and technical terms according to which the project will be worked up and executed, they seem to be provisions of services within the meaning of Article 8 of, and Annex IA to, Directive 92/50 and the agent does not appear to participate in the exercise of official authority. | C108/98
RISAN | 18-23 | ECT-45 [ex 55]
ECT-55 | 18 By its first question, the referring court asks essentially whether Article 55 of the Treaty is to be interpreted as allowing a municipality to choose, without any prior invitation to tender, a financial company as a partner in a mixed-capital company with a majority public shareholding having as its object the running of the solid urban waste collection service.
19 As far as that question is concerned, it should be observed that the application of Article 55 of the Treaty, read in combination, where appropriate, with Article 66 of the EC Treaty (now Article 55 EC), in so far as they form a derogation from the provisions of the Treaty relating respectively to freedom of establishment and to the freedom to provide services, presupposes that those latter provisions are applicable in principle.
20 According to the referring court's analysis, the correctness of which the Court is unable to verify, the award of a public service contract is not at issue in the main proceedings. However, that does not rule out the possibility that provisions of the Treaty on freedom of movement, which impose in particular on the Member States obligations to ensure equal treatment and transparency vis-à-vis economic operators from other Member States, may be relevant.
21 However, the case-file shows that RI.SAN., which challenges the legality of the choice made by the municipality, has its seat in Italy and does not operate on the Italian market in reliance on freedom of establishment or freedom to provide services.
22 Such a situation does not therefore have any connecting link with one of the situations envisaged by Community law in the area of the free movement of persons and services.
23 The answer to be given to the first question must therefore be that Article 55 of the Treaty does not apply in a situation such as that in the main proceedings in which all the facts are confined to within a single Member State and which does not therefore have any connecting link with one of the situations envisaged by Community law in the area of the freedom of movement for persons and freedom to provide services. |
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