| | ECT-49Freedom to provide services    
| ECT (2003) | Article 49 | Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall 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.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community. |
| Case | Pte | Ref | Text | C-437/07
Italy | 42-45 | ECT-43
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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-346/06
Rüffert | 37-43 | ECT-49
ECT-EquTran | 37 As the Advocate General stated at point 103 of his Opinion, by requiring undertakings performing public works contracts and, indirectly, their subcontractors to apply the minimum wage laid down by the ‘Buildings and public works’ collective agreement, a law such as the Landesvergabegesetz may impose on service providers established in another Member State where minimum rates of pay are lower an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Therefore, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 49 EC.
38 In addition, contrary to the contentions of Land Niedersachsen and a number of the Governments which submitted observations to the Court, such a measure cannot be considered to be justified by the objective of ensuring the protection of workers.
39 As stated at paragraph 29 of this judgment, since this case concerns the rate of pay fixed by a collective agreement such as that at issue in the main proceedings, that rate is applicable, as a result of a law such as the Landesvergabegesetz, only to a part of the construction sector falling within the geographical area of that agreement, since, first, that legislation applies solely to public contracts and not to private contracts and, second, that collective agreement has not been declared universally applicable.
40 The case-file submitted to the Court contains no evidence to support the conclusion that the protection resulting from such a rate of pay – which, moreover, as the national court also notes, exceeds the minimum rate of pay applicable pursuant to the AEntG – is necessary for a construction sector worker only when he is employed in the context of a public works contract but not when he is employed in the context of a private contract.
41 For the same reasons as those set out at paragraphs 39 and 40 of this judgment, the restriction also cannot be considered to be justified by the objective of ensuring protection for independence in the organisation of working life by trade unions, as the German Government contends.
42 Lastly, with regard to the objective of ensuring the financial balance of the social security systems, also raised by the German Government in support of its contention that the effectiveness of the social security system depends on the level of workers’ salaries, it does not appear from the case-file submitted to the Court that a measure such as that at issue in the main proceedings is necessary in order to avoid the risk of seriously undermining the financial balance of the social security system, an objective which the Court has recognised cannot be ruled out as a potential overriding reason in the general interest (see, inter alia, Case C-372/04 Watts [2006] ECR I-4325, paragraph 103 and the case-law cited).
43 Having regard to all of the foregoing, the answer to the question referred must be that Directive 96/71, interpreted in the light of Article 49 EC, precludes an authority of a Member State, in a situation such as that at issue in the main proceedings, from adopting a measure of a legislative nature requiring the contracting authority to designate as contractors for public works contracts only those undertakings which, when submitting their tenders, agree in writing to pay their employees, in return for performance of the services concerned, at least the remuneration prescribed by the collective agreement in force at the place where those services are performed. | 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. | C-119/06
Italy | 61-68 | S2-10-impl
ECT-49 | 61 À titre subsidiaire, la Commission demande à la Cour de constater que la conclusion de l’accordcadre de 2004 serait contraire à l’article 49 CE si la valeur des services attribués à travers cet accord-cadre et figurant à l’annexe I B de la directive 92/50 devait s’avérer supérieure à celle des services figurant à l’annexe I A de cette directive.
62 Or, comme cela a été relevé au point 58 du présent arrêt, la Commission n’a fourni aucun élément de preuve quant à la valeur du marché en cause. Il est donc impossible de déterminer la valeur relative des services en cause qui relèvent de l’annexe I A ou de l’annexe I B de la directive 92/50.
63 À supposer que lesdits services relèvent, pour la partie prépondérante de leur valeur, de l’annexe I B de la directive 92/50, il conviendrait, toutefois, de rappeler que, dans la mesure où un marché relatif à un service relevant de cette annexe présente un intérêt transfrontalier certain, l’attribution, en l’absence de toute transparence, de ce marché à une entreprise située dans l’État membre du pouvoir adjudicateur de ce marché est constitutive d’une différence de traitement au détriment des entreprises susceptibles d’être intéressées par ce marché, qui sont situées dans un autre État membre (voir arrêt du 13 novembre 2007, Commission/Irlande, C-507/03, non encore publié au Recueil, point 30 et jurisprudence citée).
64 À moins qu’elle ne se justifie par des circonstances objectives, une telle différence de traitement, qui, en excluant toutes les entreprises situées dans un autre État membre, jouerait principalement au détriment de celles-ci, serait constitutive d’une discrimination indirecte selon la nationalité, interdite en application de l’article 49 CE (voir, en ce sens, arrêt du 13 novembre 2007, Commission/Irlande, précité, point 31 et jurisprudence citée).
65 Dans ces conditions, il appartiendrait à la Commission d’établir que, nonobstant le rattachement du marché en cause aux services relevant de l’annexe I B de la directive 92/50, ledit marché présentait, pour une entreprise située dans un État membre autre que celui dont relève le pouvoir adjudicateur concerné, un intérêt certain et que cette dernière, n’ayant pas eu accès aux informations adéquates avant que ce marché ne soit attribué, n’a pu être en mesure de manifester son intérêt pour celui-ci (voir arrêt du 13 novembre 2007, Commission/Irlande, précité, point 32).
66 En l’espèce, ces éléments n’ont pas été rapportés par la Commission. En effet, la simple indication, par celle-ci, de l’existence d’une plainte qui lui a été adressée en relation avec le marché en cause ne saurait suffire à démontrer que ledit marché présentait un intérêt transfrontalier certain et, par conséquent, à constater l’existence d’un manquement (voir, en ce sens, arrêt du 13 novembre 2007, Commission/Irlande, précité, point 34).
67 Dès lors, il convient de constater que le recours n’est pas fondé en ce qu’il est tiré d’une violation de l’article 49 CE.
68 En conséquence, le recours de la Commission doit être rejeté. | 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
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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
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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
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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
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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
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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-264/03
France | 32-34 | ECT-49 | 32. As regards the complaint alleging breach of Article 49 EC, it is appropriate to point out that the provisions of the EC Treaty relating to freedom of movement are intended to apply to public contracts which are outside the scope of Directive 92/50. Although certain contracts are excluded from the scope of Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on grounds of nationality in particular (see, to that effect, Case C324/98 Telaustria and Telefonadress [2000] ECR I10745, paragraph 60; Case C92/00 HI [2002] ECR I5553, paragraph 47, and the order of 3 December 2001 in Case C59/00 Vestergaard [2001] ECR I9505, paragraph 20).
33. That is particularly the case in relation to public service contracts the value of which does not reach the thresholds fixed by Directive 92/50. The mere fact that the Community legislature considered that the strict special procedures laid down in the directives on public procurement are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from the scope of Community law (see the order in Vestergaard , paragraph 19). Likewise, contracts outside the scope of Directive 92/50, such as concession agreements, continue to be subject to the general rules of the Treaty (see, to that effect, Case C-231/03 Coname [2005] ECR I7287, paragraph 16).
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. | C-264/03
France | 64-68 | ECT-49 | 64. For public service contracts outside the scope of Directive 92/50, it remains to decide whether Article 4 of Law No 85704 complies with the principle, enshrined in Article 49 EC, of freedom to provide services.
65. It must be observed at the outset that, as stated in paragraphs 49 to 55 of this judgment, an agency agreement of delegated project contracting, as defined by Law No 85704, does not confer on the agent tasks connected with the exercise of official authority, for the tasks either of administrative or technical assistance or of representation which are entrusted to it. As a result, the exception under Articles 45 EC and 55 EC does not apply in this case.
66. Article 49 EC prohibits restrictions on freedom to provide services within the European Community 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. Furthermore, it is settled caselaw that that provision requires the elimination of any restriction, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see, in particular, Case C262/02 Commission v France [2004] ECR I6569, paragraph 22, and Case C429/02 Bacardi France [2004] ECR I-6613, paragraph 31 and the caselaw cited therein).
67. In particular, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment, thereby depriving of all practical effectiveness the provisions of the Treaty whose object is to guarantee the freedom to provide services (see Case C-180/89 Commission v Italy [1991] ECR I709, paragraph 15).
68. In this case, it must be held that Article 4 of Law No 85704 is an obstacle to the freedom to provide services for the purposes of Article 49 EC in that it leads to the reservation of the task of delegated project contracting to an exhaustive list of legal persons under French law. | 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-234/03
Contse | 29-33 | ECT-49 | 29. In that regard, it is common ground that Insalud is the main recipient of the services concerned, since the public sector represents 90% of the requests for home respiratory treatments. The Commission rightly states therefore that the admission condition gives rise for undertakings to a series of costs which will be absorbed only if the contract is awarded to them, which has the effect of rendering the submission of a tender clearly less attractive. The same is true for the evaluation criterion, pursuant to which extra points are awarded if an office is already open in the towns listed in the calls for tenders.
30. As regards the evaluation criteria for the oxygen producing, conditioning and bottling plants, it is clear that unless it already owns such plants within a 1 000 kilometres radius, an undertaking could be hindered in submitting a tender.
31. Lastly, the fact that in the final analysis the method of deciding between two tenderers who have the same number of points operates in favour of the undertaking already established on the relevant Spanish market is liable to render the submission of a tender less attractive by any other undertaking on account, in particular, of the considerable homogeneity of the market.
32. It is clear from the file that the Spanish market in gas for medical use is 97% controlled by four multinational undertakings. Moreover, as Contse rightly observed without being contradicted on that point, there cannot be any major differences between the participants as regards the number of points awarded for the techn ical aspects because all the tenderers use similar technical equipment which is produced by only two or three undertakings.
33. Therefore, it must be held that the disputed elements in the contested calls for tender are all liable to hinder or render less attractive the exercise of the freedom to provide services as guaranteed by the Treaty. Therefore, it is appropriate to determine whether each of those disputed elements fulfils the four conditions which are clear from the case-law cited in paragraph 25 of this judgment. | C-234/03
Contse | 36-46 | ECT-49 | 36. According to the case-law of the Court, the principle of equality, of which Article 49 EC is a specific expression, prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing elements, lead in fact to the same result (see Case 22/80 Boussac Saint-Frères [1980] ECR 3427, paragraph 9, and Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8).
37. Although the admission condition is applicable without distinction to any undertaking intending to respond to the call for tenders in question, it is for the national court to determine whether that condition may in practice be met more easily by Spanish operators than by those established in another Member State. In such a case, that criterion infringes the principle of non-discriminatory application (see, to that effect, Gambelli and Others , paragraph 71).
38. It must, however, be stated that in the absence of restrictions on the freedom of establishment the very fact of having an office open to the public in the capital of the province where the service will be provided would not pose a serious obstacle for foreign operators.
39. Second, the national provision must be justified by imperative requirements in the general interest.
40. In this case it is common ground that the admission condition and the other disputed elements in the contested calls for tender are intended to ensure better protection of the life and health of patients.
41. Third and fourth, the national measure must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary for attaining it.
42. On that point the Commission and Contse take the view that the condition of having, at the time the tender is submitted, an office open to the public in the capital of the province concerned is irrelevant to the aim identified above of better ensuring the protection of the life and health of patients. Insalud considers, on the contrary, that the existence of such an office serves to achieve that aim.
43. Even assuming that the existence of such an office may be regarded as suitable for ensuring patients' health, it is evident that the requirement to have an office at the time the tender is submitted is clearly disproportionate.
44. The Spanish Government's argument which, by stating that the purpose of a call for tenders is to determine which undertakings already have the means necessary to provide the service in question, places an office open to the public on the same footing as any other equipment necessary for the supply of the service cannot be accepted.
45. In that regard, the Commission rightly considers that such an office is not an essential element for the supply of the service in question. The minimum conditions already require a technical support service to be set up which is open 24 hours a day, seven days a week, which will, by means which are less restrictive of freedom to provide services, lead to the attainment in an initial period of the objective pursued in this case, that is, not to endanger the life or health of patients where there is a problem with the functioning or handling of the equipment.
46. Furthermore, as Contse pointed out, a transitional period during which the undertaking already providing the service in question transfers management of the service to the new contractor is provided, if necessary, in order to ensure that treatment of patients is not interrupted. It is important to note that, in such a case, the contractor is obliged to remunerate the undertaking which continues to provide services according to a formula set out in the specific administrative clauses in the call for tenders. The remuneration increases each month until the third month from the date on which the contract was awarded. If the new contractor has still not assumed responsibility for all the services required, the contract may be terminated. | C-234/03
Contse | 47-49 | S2-3.2
S2-9
ECT-49 | 47. As a preliminary point it must be recalled that, although it is true that Directive 92/50 is evidently applicable to the contested calls for tenders, it is clear that the service concerned in this case features in Annex I B to that directive. Under Article 9 only Articles 14 and 16 apply to such services, together with the general provisions of Title I including Article 3(2), referred to by the national court, and the final provisions in Title VII. Article 14 concerns common rules in the technical field and Article 16 concerns notices of the results of the award procedure.
48. Therefore, and in order to give a useful answer to the national court, it must be stated that the disputed elements in the contested calls for tenders are not, in any event, subject to Chapter 3, entitled Criteria for the award of contracts', in Title VI of Directive 92/50 or the limitations for which it provides.
49. It should also be recalled that the evaluation criteria, like any national measure, must comply with the principle of non-discrimination as derived from the provisions of the Treaty relating to the freedom to provide services, and that restrictions on that freedom must themselves fulfil four conditions which are set out in the case-law cited in paragraph 25 of this judgment. | C-234/03
Contse | 51-55 | ECT-49 | 51. As regards, first, the application in a non-discriminatory manner of the criterion by which extra points are awarded if the tenderer has offices open to the public in certain towns in the province where the service will be provided, it appears, as was stated in respect of the admission condition, that that criterion itself is applicable without distinction to any undertaking wishing to submit a tender.
52. Furthermore, as was stated in paragraph 40 of this judgment, it is common ground that the disputed elements in the contested calls for tenders have all been included in order to provide better protection for the life and health of patients. Insalud goes on to explain that those elements are designed, more particularly, to resolve problems with the supply of oxygen and the functioning of equipment and to ensure an adequate supply of the service in question, without undue delay or harm to the patient.
53. Next, it should be determined whether that criterion is suitable for securing the attainment of that objective but does not go beyond that which is necessary to attain it.
54. In that regard, the Commission repeats the argument it put forward in relation to the admission condition, that having those offices available prior to the performance of the contract is unnecessary and disproportionate. Contse accepts that such a criterion, given the purpose of assisting patients, might be consistent with the objective pursued, but takes the view that a simple contractual undertaking to set up such offices in the event that the contract is awarded would have enabled that objective to be attained. Neither Insalud nor the Spanish Government deal specifically with this evaluation criterion.
55. As regards that issue, as was stated in paragraph 43 of this judgment, even assuming that the existence of such offices might be regarded as suitable for protecting patients' health, it is clear that the requirement to have those offices already available at the time the tender is submitted is clearly disproportionate, even more so as the minimum conditions already require, as it was stated in paragraph 45 of this judgment, the setting up of a technical support service. | C-234/03
Contse | 56-58 | ECT-49 | 56. As regards the evaluation criteria relating to the ownership of certain plants for oxygen production, conditioning and bottling, situated within a radius of 1 000 kilometres of the province where the service will be provided, it is important to determine whether, although applicable without distinction to any undertaking, those elements might in fact favour essentially those undertakings already established in Spain.
57. Unlike having an office available, a condition which could by its very nature be fulfilled on many occasions or even each time the award of a contract made it necessary, the existence of production, conditioning or bottling plants belonging to the tenderer requires a much more substantial investment which is not normally repeated. The nature of this criterion means that it would not be easy to satisfy it if such plants are not already in place. The fact that it is not just availability but ownership of the plants in question which is required only reinforces the idea that that criterion is intended, in fact, to favour permanence.
58. Therefore, only undertakings which already own such plants on Spanish territory, or outside Spanish territory but still within a distance of 1 000 kilometres of the province in question, could be awarded the points relating to those elements. | C-234/03
Contse | 59-60 | ECT-49 | 59. Furthermore, although the geographical zone situated within a radius of 1 000 kilometres of the provinces concerned, namely Caceres and Badajoz, includes in addition to Spanish territory all Portuguese territory, it includes only a part of France and excludes almost all the Member States so that plants which, as in this case, are situated in Belgium and Italy would be outside the required radius.
60. As was stated in paragraph 37 of this judgment, if the national court finds that a criterion is in practice more easily fulfilled by Spanish operators than by those established in another Member State, that criterion infringes the principle of non-discriminatory application (see Gambelli and Others , paragraph 71). | C-234/03
Contse | 61-63 | ECT-49 | 61. In any event, although reliability of supplies may be included in the elements to be considered in order to ascertain the most economically advantageous tender in the case of a service such as that in question in the main proceedings, which aims to protect the life and health of persons by providing a suitable and diversified production close to the place of consumption (see, by analogy Case C-324/93 Evans Medical and Macfarlan Smith [1995] ECR I-563, paragraph 44), it must be held that those elements do not appear, in this case, to be adapted to the objective pursued in several respects.
62. In the first place, although the Spanish Government rightly observes that any choice of distance or transport time is arbitrary, the fact remains that the criterion of 1 000 kilometres chosen in this case appears to be inappropriate for securing the attainment of the objective in question.
63. First, the Spanish Government does not provide any evidence in support of its argument that the risk of delays, which increases proportionally with the distance to be covered, is lower because of the control that the Spanish authorities could exercise in the event of a problem arising on Spanish territory. That argument cannot be accepted. | C-234/03
Contse | 64-67 | ECT-49 | 64. Second, even assuming that crossing the internal borders of the European Community creates the delays feared by the Spanish Government, the radius of 1 000 kilometres, in that it goes beyond the Spanish borders, is not suitable for attaining the objective pursued.
65. In the second place, the Commission points out that the oxygen produced in the production plants is delivered to compression centres, in order to be compressed into bottles and that in those centres there is an emergency stock of full bottles which is sufficient in the event of damage, technical interruption or emergency to ensure the supply of oxygen for at least 15 days.
66. Therefore, as Contse also states, the proximity of the production plants does not secure the attainment of the objective of reliable supplies. It is for the national court to determine whether the situation is different for oxygen conditioning and bottling plants.
67. The stated practice of the undertakings confirms, moreover, that means exist, which are less restrictive of the freedom to provide services, for attaining the objective pursued of guaranteed availability of gas for medical use close to the place of consumption. As the Commission and Contse point out, that is to give credit, by awarding extra points, to storage depots with a stock of gas intended to cover, where necessary for a stated period, any interruptions or irregularities in transport from production or bottling plants. | C-234/03
Contse | 68-70 | ECT-49 | 68. Lastly, in so far as the Commission and Contse criticise the importance attributed to the ownership of production plants, it must be observed that the contracting authorities are free not only to choose the elements for awarding the contract but also to determine the weighting of such elements, provided that the weighting enables an overall evaluation to be made of the elements applied in order to identify the most economically advantageous tender (see, to that effect, Case C448/01 EVN and Wienstrom [2003] ECR I-14527, paragraph 39). The same would be true if the service in question came under Annex I B to Directive 92/50, which could be the case for the contracts in question, and, therefore, were covered by a less restrictive scheme for the award of contracts.
69. In the main proceedings the criterion relating to production plants does not concern the supply which is the subject of the contract, namely the supply of home respiratory treatments, or even the amount of gas which will be produced, but the maximum production capacity of the plants owned by the tenderer in so far as extra points are awarded each time one of the three thresholds for total annual production is reached.
70. Therefore the evaluation criteria relating, in this case, to the award of extra points for an ever-increasing production capacity, cannot be regarded as linked to the objective of the contract and even less as suitable for ensuring that it is attained (see, to that effect, EVN and Wienstrom , paragraph 68) | C-234/03
Contse | 71-76 | ECT-49 | 71. Finally, even assuming that those elements were a response to the need to ensure reliability of supplies and, therefore, that they were linked to the objective pursued in the contested calls for tenders and suitable for attaining it, the capacity of tenderers to provide the largest possible amount of the product cannot legitimately be given the status of an award criterion (see, to that effect, EVN and Wienstrom , paragraph 70).
72. In that regard, it must be recalled that the contested calls for tender provide, as conditions for the submission of a tender, that the tenderer should have more than one source of production and bottling and be able to produce at least 400 000 m3 per year, in connection with the call for tenders relating to the province of Caceres, and 550 000 m3 per year in connection with that relating to the province of Badajoz. It is clear from the file that those quantities represent approximately 75% and 80% respectively of the consumption planned for the first year of the contract concerned.
73. Furthermore, it must be observed that the first of the three thresholds provided for in the contested calls for tenders, that is a total annual production, for each of the contracts, of at least 800 000 m3 and 1 000 000 m3 respectively, in respect of which extra production confers in both cases 1.3 points, corresponds to a volume exceeding the total consumption anticipated for the fourth and final year of the contract concerned. Therefore, a total annual production capacity of such a level could, in some circumstances, be regarded as being necessary to the objective, recalled in paragraph 71 of this judgment, of ensuring reliability of supplies.
74. However, the evaluation criteria under consideration go beyond what is necessary. 1.3 points are still awarded where total annual production exceeds a threshold of at least 1 200 000 m3 and 1 500 000 m3 respectively and 2 extra points if that production is at least 1 600 000 m3 and 2 000 000 m3 respectively.
75. It should be noted that those figures, which correspond to the third total annual production threshold, represent each time twice the figure for the first threshold, set out in paragraph 73 of this judgment.
76. It follows that, in so far as the maximum number of points is allocated to tenderers with a production capacity which largely exceeds the consumption expected in the context of the contested calls for tenders, while the first threshold already appears suitable for ensuring, as far as possible, a reliable supply of gas, the evaluation criteria used in the case, as regards the award of extra points where the second and third total annual production thresholds are exceeded, are not compatible with the requirements of the relevant Community law (see, by analogy, EVN and Wienstrom , paragraph 71). | C-234/03
Contse | 77-78 | ECT-49 | 77. Finally, as regards the manner of deciding between two tenderers with the same number of points, the award criterion used applies not only where there is an overall tie, but also where there is a tie in respect of technical aspects between two tenders with the same number of points, and favours the undertaking which was already supplying the service.
78. The conditions to be fulfilled, set out above, are also applicable to such a criterion. Deciding automatically and definitively in favour of the operator already present on the market concerned is discriminatory. | C-234/03
Contse | 79 | ECT-49 | 79. It follows from all the foregoing considerations that Article 49 EC precludes a contracting authority from providing in the tendering specifications for a public contract for health services of home respiratory treatment and other assisted breathing techniques, first, for an admission condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the capital of the province where the service is to be supplied and, second, for evaluation criteria which reward, by awarding extra points, the existence at the time the tender is submitted of oxygen production, conditioning and bottling plants situated within 1 000 kilometres of that province or offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which was already providing the service concerned, in so far as those elements are applied in a discriminatory manner, are not justified by imperative requirements in the general interest, are not suitable for securing the attainment of the objective which they pursue or go beyond what is necessary to attain it, which is a matter for the national court to determine. | C-231/03
Coname | 15-22 | ECT-43
ECT-49 | 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-19/00
SIAC | 32 | ECT-28
ECT-30 | 32 The Court has held in this regard 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). | C-94/99
ARGE | 35-38 | ECT-49 [ex 59] | 35 ARGE maintains that the fact that advantaged tenderers can take part in a tendering procedure is contrary to the prohibition of discrimination on grounds of nationality.
36 As the Commission has observed in its written observations, as a rule aid is granted to undertakings established on the territory of the Member State granting it. Such a practice, and the consequent unequal treatment of undertakings of other Member States is thus inherent in the concept of State aid. It does not, however, amount in itself to covert discrimination or a restriction on freedom to provide services within the meaning of Article 59 of the Treaty.
37 Furthermore, in the dispute in the main proceedings it is not contended that participation in the procedure in question was subject, de jure or de facto, to a condition requiring in effect that subsidised tenderers should possess the nationality of the Member State to which the adjudicating authority belongs or that they should have their seat in that State.
38 In those circumstances, the reply to be given to the second and third questions must be that the mere fact that a contracting authority allows bodies receiving subsidies of any kind, whether from that contracting authority or from other authorities, which enable them to submit tenders at prices appreciably lower than those of the other, unsubsidised, tenderers, to take part in a procedure for the award of a public service contract does not constitute either covert discrimination or a restriction contrary to Article 59 of the Treaty. | C-380/98
University of Cambridge | 16 | ECT-28 [ex 30]
ECT-49 [ex 59] | 16 It should be borne in mind at the outset that, as far as the purpose of Directives 92/50, 93/36 and 93/37 is concerned, the Court has 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, to that effect, Case C-360/96 Gemeente Arnhem, Gemeente Rheden v BFI Holding [1998] ECR I-6821, paragraph 41). | C-225/98
France | 80-83 | W1-26.1.a-b
W1-26.1.c-e
ECT-49 [ex 59] | 87 In this respect, the Court finds, first, that the requirement of proof that the designer is registered with the Ordre des Architectes can only give advantage to the provision of services by French architects, which constitutes discrimination against Community architects and, accordingly, a restriction on their freedom to provide services.
88 Second, according to the case-law, Directive 71/305 precludes a Member State from requiring a tenderer established in another Member State to furnish proof by any means other than those prescribed in Articles 23 to 26 of that directive, that he satisfies the criteria laid down in those provisions and relating to his qualifications (see, to that effect, Transporoute, paragraph 15).
89 In any event, the French Government itself recognises that those criticisms by the Commission are well founded but submits that the infringements committed are essentially the result of the inexperience of the contracting authorities in question in applying the Community rules on the award of public contracts.
90 Consequently, it must be concluded that the Commission's complaint relating to the minimum standards for participation is well founded and that the French Republic has failed in its obligations under Articles 59 of the Treaty and 26 of Directive 71/305. | C-360/96
Gemeente Arnhem | 41 | ECT-28 [ex 30]
ECT-49 [ex 59] | 41 Next, it must be borne in mind that the purpose of coordinating at Community level the procedures for the award of public service contracts is to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State who wish to offer goods or services to contracting authorities in another Member State. | C-225/98
France | 80-83 | ECT-49 [ex 59] | 80 According to the Court's case-law the principle of equal treatment, of which Article 59 of the Treaty is a specific expression, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case 3/88 Commission v Italy [1989] ECR 4035, paragraph 8).
81 In this case, although the reference to classifications of French professional organisations does not imply that the certificates which may be taken into account are exclusively those issued by those bodies, it remains the case that the technical specifications selected are so specific and abstruse that, as a rule, only French candidates are able immediately to discern their relevance. Consequently, the use of those references to designate the lots has the effect of supplying more information to French undertakings about the nature of the lots, thereby making it easier for those undertakings to submit tenders which comply with the coded references appearing in the contract notice.
82 On the other hand, it is more difficult for tenderers from other Member States to submit tenders within the brief time-limit set since they must first find out from the contracting authorities in question the purpose and content of those references.
83 Therefore, to the extent that the designation of the lots by reference to classifications of French professional organisations is likely to have a dissuasive effect on tenderers who are not French, it thereby constitutes indirect discrimination and, therefore, a restriction on the freedom to provide services, within the meaning of Article 59 of the Treaty. | 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. | 45/87
Ireland | 14-18 | ECT-28 [ex 30]
ECT-49 [ex 59]
ECT-90 [ex 95] | 14 The Irish Government points out that the contract at issue relates not to the sale of goods but to the performance of work, and the clauses relating to the materials to be used are completely subsidiary . Contracts concerned with the performance of work fall under the Treaty provisions relating to the free supply of services, without prejudice to any harmonization measures which might be taken under Article 100. Consequently, Article 30 cannot apply to a contract for works.
15 In that connection, the Irish Government cites the case-law of the Court and, in particular, the judgment of 22 March 1977 in Case 74/76 Iannelli & Volpi v Meroni (( 1977 )) ECR 557, according to which the field of application of Article 30 does not include obstacles to trade covered by other specific provisions of the Treaty.
16 That argument cannot be accepted. Article 30 envisages the elimination of all measures of the Member States which impede imports in intra-Community trade, whether the measures bear directly on the movement of imported goods or have the effect of indirectly impeding the marketing of goods from other Member States. The fact that some of those barriers must be considered in the light of specific provisions of the Treaty, such as the provisions of Article 95 relating to fiscal discrimination, in no way detracts from the general character of the prohibitions laid down by Article 30.
17 The provisions on the freedom to supply services invoked by the Irish Government, on the other hand, are not concerned with the movement of goods but the freedom to perform activities and have them carried out; they do not lay down any specific rule relating to particular barriers to the free movement of goods. Consequently, the fact that a public works contract relates to the provision of services cannot remove a clause in an invitation to tender restricting the materials that may be used from the scope of the prohibitions set out in Article 30.
18 Consequently, it must be considered whether the inclusion of Clause 4.29 in the invitation to tender and in the tender specifications was liable to impede imports of pipes into Ireland. |
| Case | Pte | Ref | Text | N-080626
UAB Baltic Orthoservice | 3+K1 | C3-53.1-impl
ECT-49-impl | Ad påstand 2, delkriterium »c. Kommunikation med bruger«
3. Da det er af afgørende betydning for brugerne, at al kommunikation mellem dem og den virksomhed, der indgås kontrakt med, foregår på et fuldt forståeligt dansk sprog, og iøvrigt af de grunde, som de indklagede har anført, tager Klagenævnet ikke denne påstand til følge. [No consideration of possible ECT-49 problem]
.....
K1. Klagen tages ikke til følge.
[Påstand 2 Klagenævnet skal konstatere, at de indklagede har handlet i strid med Udbudsdirektivet artikel 53, stk.1, litra a, ved ved vurderingen af klagerens tilbud efter tildelingskriteriet »det økonomisk mest fordelagtige tilbud« i relation til følgende delkriterier til underkriterium »2. Kundeservice« at have tildelt klagerens tilbud for få point:
......
»c. Kommunikation med bruger«] | N-080626
UAB Baltic Orthoservice | 5+K1 | C3-53.1-impl
ECT-49-impl | Ad påstand 2. delkriterium »f. Krav til leverandørens beliggenhed«
5. Det kan ikke af afsnit 3.8. udledes, at de indklagede har stillet krav om, at den virksomhed, der indgås kontrakt med, straks ved kontraktsforholdets start skal have en permanent forretningsadresse, som opfylder kravene i afsnit 3.8., klar til brug, men det følger af formålet med afsnit 3.8., at tilbudsgiverne i deres tilbud skal give de nødvendige oplysninger om en eventuel midlertidig forretningsadresse, der er planlagt anvendt, hvis virksomheden får kontrakten. Under hensyn til de begrænsede oplysninger i klagerens tilbud om den midlertidige forretningsadresse, tager Klagenævnet ikke påstanden til følge.[No consideration of possible ECT-49 problem]
.....
K1. Klagen tages ikke til følge.
[Påstand 2 Klagenævnet skal konstatere, at de indklagede har handlet i strid med Udbudsdirektivet artikel 53, stk.1, litra a, ved ved vurderingen af klagerens tilbud efter tildelingskriteriet »det økonomisk mest fordelagtige tilbud« i relation til følgende delkriterier til underkriterium »2. Kundeservice« at have tildelt klagerens tilbud for få point:
.....
»f. Krav til leverandørers beliggenhed«] | N-071221
Damm Cellular Systems | 1-4+K1 | C3-2-impl
ECT-12-impl
ECT-49-impl
KNL2-1 | Ad påstand 1 – 10
1. Den centrale beslutning, som efter klagerens opfattelse indebærer en overtrædelse af det EU-retlige ligebehandlingsprincip, er Den Danske Stats beslutning om på et tidspunkt at tildele en virksomhed Tetra-frekvenser i frekvensbåndet 380-400 MHz, forinden det ved gennemførelse af et EUudbud var blevet konstateret, hvilken virksomhed der kunne afgive det økonomisk mest fordelagtige tilbud på en kontrakt om tilslutning til og brug at et landsdækkende radiobaseret telekommunikationsnet, uanset at det allerede på dette tidspunkt var besluttet, at der skulle indgås en sådan kontrakt, eller uanset at det lå klart, at der ville blive truffet beslutning om, at der skulle indgås en sådan kontrakt. Klageren har herved gjort gældende, at den korrekte fremgangsmåde havde været først under et EU-udbud vedrørende kontrakten om tilslutning til og brug af et landsdækkende radiobaseret telekommunikationsnet at konstatere, hvilken virksomhed der kunne afgive det økonomisk mest fordelagtige bud på denne kontrakt, dernæst at indgå kontrakt med den pågældende tilbudsgiver om telekommunikationsnettet, og derefter at foranledige, at den pågældende tilbudsgiver fik tildelt de frekvenstilladelser, som var nødvendige, for at tilbudsgiveren som fremtidig kontraktspart kunne præstere den aftalte ydelse. 1 22.
2. En sådan eventuel tilsidesættelse af ligebehandlingsprincippet er imidlertid ikke en tilsidesættelse at det EU-udbudsretlige ligebehandlingsprincip, da den relevante beslutning ligger forud for iværksættelsen af det EU-udbud, som klagen vedrører, og da den relevante beslutning er truffet af andre danske statsmyndigheder end den ordregivende myndighed Økonomistyrelsen.
3. Efter lov om Klagenævnet for Udbud § 1 omfatter Klagenævnets kompetence overtrædelser af fællesskabsretten, men som det fremgår til dels af § 1, og som det i øvrigt er fastlagt i Klagenævnets praksis, omfatter Klagenævnets kompetence kun overtrædelser af fællesskabsretten, som sker i forbindelse med indgåelse af offentlige konktakter.
4. Da påstand 1 – 10 som anført ikke vedrører overtrædelser af det EUudbudsretlige ligebehandlingsprincip begået af en offentlig udbyder under et udbud, men derimod en påstået overtrædelse af den generelle EU-retlige ligebehandlingsprincip begået af Den Danske Stat, afviser Klagenævnet påstand 1 – 10.
Herefter bestemmes:
K1. Påstand 1 – 10 afvises.
[Påstand 1 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbekendtgørelsen i afsnit III.2.3. »Teknisk Kapacitet« at have fastsat følgende betingelse, som virksomheder, der ønsker at blive prækvalificeret, skal opfylde, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den virksomhed, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»Oplysninger og formaliteter, som er nødvendige for at vurdere, om kravene er opfyldt:
……
5) En erklæring om, hvilket materielt og teknisk udstyr, herunder frekvensadgangen, jf. lov om radiofrekvenser, tjenesteyderen disponerer over til opfyldelse af kontrakten.«
Påstand 2 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbekendtgørelsen i afsnit VI, 3 »Yderligere oplysninger« at have fastsat følgende betingelse, som virksomheder, der ønsker at blive prækvalificeret, skal opfylde, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den virksomhed, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz: P2 R1 5.
»Oplysninger og formaliteter, som er nødvendige for at vurdere, om kravene er opfyldt:
……
3) »Yderligere oplysninger« under nr. 4:
4) Tjenesteydere, der ikke afgiver alle de [i] punkt III.2 udbedte oplysninger, kan ikke forvente at blive udvalgt til at deltage i udbudsforretningen. Ved sammenslutninger af tjenesteydere (konsortier) skal oplysningerne, der udbydes i punkt III.2, afgives for samtlige tjenesteydere.«
Påstand 3 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbekendtgørelsen i afsnit IV.1.2. »Begrænsning af det antal økonomiske aktører, som vil blive opfordret til at afgive tilbud eller deltage« at have fastsat følgende betingelse, som virksomheder, der ønsker at blive prækvalificeret, skal opfylde, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den virksomhed, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»Objektive kriterier for valg af det begrænsede antal kandidater:
……
4) Karakteren af det materiel og tekniske udstyr, som tjenesteyderen disponerer over, og som tjenesteyderen planlægger at anvende.«
Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbekendtgørelsen i afsnit IV. 3) »Yderligere oplysninger« at have fastsat følgende betingelse, som virksomheder, der ønsker at blive prækvalificeret, skal opfylde, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den virksomhed, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»7) Det vil være en betingelse for tildeling af ordren, at tjenesteyder besidder den efter lov om radiofrekvenser (lovbekendtgøreles nr. 680 af 23. juni 2004) for udførelsen af tjenesteyderens påkrævede tilladelse. Tilladelsen skal forligge senest 7 dage efter udløbet af fristen for afgivelse af endeligt tilbud.«
Påstand 5 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbetingelsernes kravsspecifikationer at have fastsat følgende, uagtet dette krav for så vidt angår relevant frekvensadgang tilgodeser den tilbudsgiver, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»II.6.1.1. Frekvensområde«
II.6.1.1.1) Tilbudsgiver skal oplyse om, hvilke frekvenser det foreslåede net skal operere i. Såfremt tilbudsgiver ikke har frekvenser til rådighed, skal tilbudsgiver oplyse om, hvornår frekvenser er til rådighed samt hvilket frekvensbånd, der vil være til rådighed.«
Påstand 6 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbetingelsernes kravsspecifikationer at have fastsat følgende, uagtet dette krav for så vidt angår relevant frekvensadgang tilgodeser den tilbudsgiver, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»II.3.2.7 Dækning i luften
II.3.2.7.1 Tjenesteyder skal levere dækning for luftfartøjer for alle højder op til 500 m over jordens overflade.
II.3.2.7.2 Dækningen skal give uplink og downlink tale- og dat service til terminaler i luftfartøjet.
II.3.2.7.3 Tale- og data service skal være tilgængelige ved alle hastigheder op til 240 km/t.
II.3.2.7.4 Tilbudsgiver skal specificere sin løsning for dækning for luftfarttøjer og angive hvor mange sites, der er nødvendige for at levere dækning til luftfartøjer.«
Påstand 7 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbetingelserne herunder »Kravsspecifikationens« afsnit »II.3.3. Kapacitetskrav « at have fastsat krav, som de virksomheder, der ønsker at få tildelt 7. kontrakten, skal opfylde, ved at have udvidet området for geografisk dækning og samtidig fastholdt øgede krav vedrørende kapaciteten i nettet, uagtet at disse krav for så vidt angår relevant frekvensadgang tilgodeser den tilbudsgiver, der allerede har fået tildelt frekvensadgangen på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz.
Påstand 8 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbekendtgørelsen i afsnit II.1.5. »Kortfattet beskrivelse af kontrakten eller indkøbet/ene« at have fastsat følgende betingelse, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den virksomhed, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»nr. 2. Af hensyn til nettets væsentlighed for nød- og beredskabsbrugerne vil økonomistyrelsen i udbuddet, der gennemføres som en konkurrencepræget dialog, sikre:
2) at nettet kan integreres med Danmarks nabolandes nød- og beredskabsnet. Dette med henblik på at muliggøre kommunikation mellem beredskabsmyndigheder på tværs af grænser.«
Påstand 9 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbetingelserne i afsnit II.4.1.5. »Integration af fremmed net« at have fastsat følgende betingelserne, uagtet denne betingelse for så vidt angår relevant frekvensadgang tilgodeser den tilbudsgiver, der allerede har fået tildelt frekvensadgang på 2 x 4,15 MHz i frekvensbåndet 380-400 MHz:
»II.4.1.5.1 Nettet skal give mulighed for integration til de tilsvarnde beredskabsnet i Danmarks nabolande, herunder som minimum til Sverige og Tyskland.«
Påstand 10 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivets artikel 2 (ligebehandlingsprincippet) ved i udbudsbetingelserne (version 1.3.) at have fastsat følgende supplerende underkriterium vedrørende vurderingen af økonomien i tilbudene, uagtet dette 8. forhold favoriserer den tilbudsgiver, der allerede har fået tildelt de frekvenser, der passer til det udstyr, som brugerne af nød- og beredskabsnettet i forvejen råder over:
»I vurderingen af økonomi lægges vægt på den laveste, samlede pris for etablering og drift af nettet og for optioner, ændringer og øvrige ydelser. Der lægges samtidig vægt på kundens og de forventede bestilleres samlede, skønnede interne organisatoriske og tekniske omkostninger forbundet med den tilbudte løsning set over hele kontraktperioden.
Når der ved forventede skønnede interne organisatoriske og tekniske omkostninger forstås følgende:
- De forventede bestillere er danske beredskab forstået som politiet, det statslige, regionale og kommunale beredskab (blå blink).
- Det fremhæves, at Økonomistyrelsen vil anlægge et sagligt skøn over de interne omkostninger, idet det ikke vil være muligt allerede i tilbudsevalueringen at foretage en egentlig opgørelse af omkostningerne.
- Organisatoriske omkostninger er især beredskabernes interne omkostninger til uddannelse og vejledning i brug af nettet og andre direkte omkostninger forbundet med organisatoriske ændringer i beredskaberne som følge af tilslutning til nettet mv.
- Tekniske omkostninger er især de direkte omkostninger relateret til migrering, parallel drift af eksisterende radiosystemer, tekst i forbindelse med tilslutning til nettet, udvikling af snitflade til kommunikation med nettet på eksisterende eller kommende applikationer og tilslutning af kontrolrumssoftware eller andet software til kommunikation via nettet.«] | N-070903
SP Medical | 9+K4 | C3-2-impl
C3-2.noncom-impl
C3-44.1-impl
ECT-28-impl
ECT-49-impl | Ad påstand 4
9. Kravet om, at virksomhedernes medarbejdere skal være lokaliseret geografisk tæt på den ordregivende myndighed har i den her omhandlede situation, der angår leverancer af nummerplader, hvor der bl.a. stilles krav om eksistensen af et sikkerhedslager, kun ringe praktisk betydning [No consideration of the possible discriminatory impact of this requirement in itself, nor on the mix with selection criteria, as ruled on previously in N-070810], i modsætning til f.eks. ydelser, der fordrer personers fremmøde inden en vis frist. UTSCH’s medarbejdere skønnes således lokaliseret tæt nok på indklagede, og klagen tages derfor ikke til følge.
......
K4. Klagen tages ikke til følge vedrørende påstand 1-7 og 9-10.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med Udbudsdirektivet ved ikke at afvise anmodningen fra Utsch AG om prækvalifikation, uanset denne virksomhed ikke opfylder udbudsbekendtgørelsens pkt. III. 2.3 om at vedlægge CV på medarbejdere, »lokaliseret tæt på ordregivende myndighed«, idet virksomheden havde vedlagt CV på medarbejdere fra Siegen, Kreuztal, Freudenber, Bad Laasphe, Herdorf, Kirchen og Kirchhundem i Tyskland. ] | N-061208
Nethleas | 5-9 | C3-2-impl
C3-44.2-impl
C3-53.1-impl
ECT-49-impl | Ad påstand 1, 2 og 3
5. Påstand 1 og 3 vedrører betingelserne for at deltage i prækvalifikationen. Påstand 2 vedrører udvælgelseskriterierne.
6. Det fremgår af udbudsbekendtgørelsen, at den pågældende tjenesteydelse udbydes »teknologi-neutralt«, og på denne baggrund er det ikke i strid med EU-udbudsreglerne, at indklagede i udbudsbekendtgørelsen har fastsat, at anmodningen fra de virksomheder, der ønsker at blive prækvalificeret, skal indeholde oplysning om »materiel og teknisk udstyr, herunder frekvensadgang «, som virksomheden »disponerer over til opfyldelse at kontrakten«. Det bemærkes herved, at formuleringen »disponerer over til opfyldelse af kontrakten« naturligt må forstås både som »disponerer over på tidspunktet for indgivelse af anmodningen om prækvalifikation«, og som »disponerer over på tidspunktet for afgivelsen af tilbud« (påstand 1).
7. På den anførte baggrund er det endvidere ikke i strid med EUudbudsreglerne, at indklagede i sammenhæng med de netop omtalte bestemmelser i udbudsbekendtgørelsen har fastsat, at virksomheder, der ikke afgiver »alle de i punkt III.2 udbedte oplysninger«, ikke kan forvente at blive prækvalificeret (påstand 3).
8. På den anførte baggrund er det endelig ikke i strid med EU-udbudsreglerne, at indklagede i sammenhæng med de netop omtalte bestemmelser i udbudsbekendtgørelsen har fastsat, at indklagede ved afgørelsen af, hvem der skal prækvalificeres, lægger vægt på disse oplysninger, jf. herved tilføjelsen i afsnit IV.1.2), nr. 4 »planlægger at anvende« (påstand 2).
9. Klagenævnet tager derfor ikke disse påstande til følge.
[Påstand 1 Klagenævnet skal konstatere, at indklagede har handlet i strid med ligebehandlingsprincippet i Udbudsdirektivets artikel 2 og forbudet mod diskrimination i EF-traktatens artikel 49 ved i udbudsbekendtgørelsen af 8. juni 2006 i afsnit »III.2.3) Teknisk kapacitet« under nr. 5 at have fastsat følgende betingelse, som virksomheder, der ønsker at blive prækvalificeret, skal opfylde: »Oplysninger og formaliteter, som er nødvendige for at vurdere, om kravene er opfyldt: 5) En erklæring om, hvilket materiel og teknisk udstyr, herunder frekvensadgang, jf. lov om radiofrekvenser, tjenesteyderen disponerer over til opfyldelse af kontrakten«, uagtet denne betingelse for så vidt angår »frekvensadgang« tilgodeser dels virksomheder, der allerede har fået tildelt frekvensadgang, dels R1 3. virksomheder, der ikke selv har fået tildelt frekvensadgangn, men som allerede har indgået aftale med virksomheder, der har fået tildelt frekvensadgang, hvilket for begge gruppers vedkommende overvejende er danske virksomheder.
Påstand 2 Klagenævnet skal konstatere, at indklagede har handlet i strid med ligebehandlingsprincippet i Udbudsdirektivets artikel 2 og forbudet mod diskrimination i EF-traktatens artikel 49 ved i udbudsbekendtgørelsen af 8. juni 2006 i afsnit »IV.1.2) Begrænsning af det antal økonomiske aktører, som vil blive opfordret til at deltage« under nr. 4 at have fastsat følgende: »Objektive kriterier for valg af det begrænsede antal kandidater: 4) Karakteren af det materiel og teknisk udstyr, som tjenesteyderen disponerer over og som tjenesteyderen planlægger at anvende.«, uagtet at dette udvælgelseskriterium for så vidt angår »frekvensadgang« tilgodeser dels virksomheder, der allerede har fået tildelt frekvensadgang, dels virksomheder, der ikke selv har fået tildelt frekvensadgang, men som allerede har indgået aftale med virksomheder, der har fået tildelt frekvensadgang, hvilket for begge grupperes vedkommende overvejende er danske virksomheder.
Påstand 3 Klagenævnet skal konstatere, at indklagede har handlet i strid med ligebehandlingsprincippet i Udbudsdirektivets artikel 2 og forbudet mod diskrimination i EF-traktatens artikel 49 ved i udbudsbekendtgørelsen af 8. juni 2006 i afsnit »VI.3) Yderligere oplysninger« under nr. 4 at have fastsat følgende: »4) Tjenesteydere der ikke afgiver alle de punkt III.2 udbedte oplysninger kan ikke forvente at blive udvalgt til at deltage i udbudsforretningen. Ved sammenslutninger af tjenesteydere (konsortier) skal oplysningerne, der udbudes i punkt III.2, afgives for samtlige tjensteydere« uagtet at dette udvælgelseskriterium for så vidt angår »frekvensadgang« tilgodeser dels virksomheder, der allerede har fået tildelt frekvensadgang, dels virksomheder, der ikke selv har fået tildelt frekvensadgang, men som allerede har indgået aftale med virksomheder, der har fået tildelt frekvensadgang, hvilket for begge grupperes vedkommende overvejende er danske virksomheder.] | N-061208
Nethleas | 10-11 | C3-2-impl
C3-44.2-impl
C3-53.1-impl
ECT-49-impl | Ad påstand 4
10. Den omhandlede bestemmelse i udbudsbekendtgørelsen vedrører ikke krav, som de virksomheder, der ønsker at blive prækvalificeret, skal opfylde. Bestemmelsen vedrører heller ikke krav, som de tilbud, som de prækvalificerede virksomheder efterfølgende afgiver under den tekniske dialog, skal opfylde. Bestemmelsen indeholder derimod en oplysning om, at den tilbudsgiver, hvis »endelige« tilbud indklagede under den tekniske dialog til sin tid beslutter at indgå kontrakt på grundlag af, skal have sikret sig senest 7 dage efter afgivelsen af dette »endelige« tilbud at være i besiddelse af den fornødne radiosendetilladelse, idet indklagede - uanset sin beslutning om indgåelse af kontrakt - i modsat fald alligevel ikke agter at indgå kontrakt på grundlag af dette tilbud.
11. Efter det oplyste om den forventede varighed af den tekniske dialog under udbudet og om sagsbehandlingstiden hos de relevante myndigheder vedrørende tildeling af radiosendetilladelser, har Klagenævnet ikke grundlag for at konstatere, at den pågældende bestemmelse, der alene vedrører en betingelse for, at indklagede vil indgå den udbudte kontrakt med den valgte tilbudsgiver, er i strid med EU-udbudsreglerne. Klagenævnet tager derfor ikke denne påstand til følge.
[Påstand 4 Klagenævnet skal konstatere, at indklagede har handlet i strid med ligebehandlingsprincippet i Udbudsdirektivets artikel 2 og forbudet mod diskrimination i EF-traktatens artikel 49 ved i udbudsbekendtgørelsen af 8. juni 2006 i afsnit »VI.3) Yderligere oplysninger« under nr. 7 at have fastsat følgende: »7) Det vil være en betingelse for tildeling af ordren, at tjenesteyder besidder den efter lov om radiofrekvenser (lovbekendtgørelse nr. 680 af 23. juni 2004) for udførelsen af tjenestydelserne påkrævede tilladelse. Tilladelsen skal foreligge senest 7 dage efter udløbet af fristen for afgivelse af endeligt tilbud« uagtet at dette udvælgelseskriterium for så vidt angår »frekvensadgang« tilgodeser dels virksomheder, der allerede har fået tildelt frekvensadgang, dels virksomheder, der ikke selv har fået tildelt frekvensadgang, men som allerede har indgået aftale med virksomheder, der har fået tildelt frekvensadgang, hvilket for begge grupperes vedkommende overvejende er danske virksomheder.] | N-061208
Nethleas | 12 | C3-2-impl
C3-44.2-impl
C3-53.1-impl
ECT-49-impl | Ad påstand 5
12. Denne påstand vedrører beskrivelsen af den udbudte tjenesteydelse. Efter det oplyste om den udbudte tjenesteydelse er det pågældende krav et sagligt og nødvendigt krav. Under henvisning til det, som Klagenævnet har anført indledningsvis og til det, der er anført ad påstand 1, 2 og 3, tager Klagenævnet ikke denne påstand til følge. Det bemærkes særligt, at indklagede har oplyst, at alle 3 tilbudsgivere - således også det tilbud, der ikke anvender TETRA-systemet - i deres tilbud har anført, at det tilbudte anlæg kan integreres med nød- og beredskabsnettene i Danmarks nabolande.
[Påstand 5 Klagenævnet skal konstatere, at indklagede har handlet i strid med ligebehandlingsprincippet i Udbudsdirektivets artikel 2 og forbudet mod diskrimination i EF-traktatens artikel 49 ved i udbudsbekendtgørelsen af 8. juni 2006 i afsnit »II.1.5.) Kortfattet beskrivelse af kontrakten eller indkøbet/ ene« under nr. 2 at have fastsat følgende: »Af hensyn til nettets væsentlighed for nød- og bereskabsbrugerne vil Økonomistyrelsen i udbudet, der gennemføres som en konkurrencepræget dialog, sikre: 2) at nettet kan integreres med Danmarks nabolandes nød- og beredskabsnet. Dette med henblik på at muliggøre kommunikation mellem bereskabsmyndigheder på tværs af grænser; uagtet denne betingelse for så vidt angår »frekvensadgang« tilgodeser dels virksomheder, der allerede har fået tildelt frekvensadgang, dels virksomheder, der ikke selv har fået tildelt frekvensadgang, men som allerede har indgået aftale med virksomheder, der har fået tildelt frekvensadgang, hvilket for begge grupperes vedkommende overvejende er danske virksomheder.] | N-021127
Aon Denmark | 9+K2 | S2-3.2-impl
C2A1-1.6.p1=S2-23.1-impl
S2-36.1-impl
ECT-49 | 9. Da Tjenesteydelsesdirektivet finder anvendelse på udbudet, har indklagede ved ved bedømmelsen af tilbudene at lægge vægt på Willis I/S´s forretningssteds nære beliggenhed i forhold til Odense Kommune som også erkendt af indklagede handlet i strid med Tjenesteydelsesdirektivets artikel 23, jf. artikel 36, stk. 1, og i strid med ligebehandlingsprincippet i Tjenesteydelsesdirektivets artikel 3, stk. 2, og det herefter ufornødent for Klagenævnet at tage stilling til, om indklagede herved tillige har handlet i strid med Traktatens artikel 49. Påstand 5 tages derfor til følge, mens Klagenævnet ikke tager stilling til påstand 6.
.....
K2. Indklagede har handlet i strid med Tjenesteydelsesdirektivets artikel 23, jf. artikel 36, stk. 1 og artikel 3, stk. 2, ved ved bedømmelsen af tilbudene at have lagt vægt på Willis I/S’ forretningssteds nære beliggenhed i forhold til Odense Kommune, idet denne tilbudsgiver har forretningsadresse i Odense.
[Påstand 6 Klagenævnet skal konstatere, at indklagede har handlet i strid med Traktatens artikel 49 ved ved bedømmelsen af tilbudene at have lagt vægt på Willis I/S’ forretningssteds nære beliggenhed i forhold til Odense Kommune, idet denne tilbudsgiver har forretningsadresse i Odense, uagtet dette forhold ikke efter artikel 49 lovligt kunne tages i betragtning ved tildelingen af ordren.] | N-960123-1
Praktiserende Arkitekters Råd | 5-6 | S2-3.2
S2-36.1-impl
ECT-49 [ex 59] | 5. Efter det oplyste lægger Klagenævnet til grund, at indklagede ved anvendelsen af kriterium 11 har tillagt det betydning, om tilbudsgiverne havde tilknytning til Glostrup Kommune, fx ved at en tilbudsgiver havde forretningssted i kommunen. Det lægges endvidere til grund, at der blandt de 5 prækvalificerede tilbudsgivere kun var ét firma, som ville drage fordel af kriterium 11, nemlig det firma, som faktisk fik tildelt opgaven. Som følge heraf træffer Klagenævnet afgørelse i overensstemmelse med klagerens påstand 5, dog således at alene tjenesteydelsesdirektivets artikel 3, stk. 2, er overtrådt.
[Påstand 5: Klagenævnet skal fastslå, at kommunen har handlet i strid med EF-Traktatens artikel 59 og tjenesteydelsesdirektivets artikel 3, stk. 2, ved ved tildelingen af ordren at anvende følgende tildelingskriterium: »11. Andet. Her bedømmes, om tilbudsgiveren har særlige fortrin eller relationer til Glostrup Kommune, eller der forekommer andre signifikante forhold i tilbud«, uagtet dette tildelingskriterium kun ville være til fordel for én bestemt af de prækvalificerede tilbudsgivere.]
6. Efter det, der er oplyst for Klagenævnet, er der ikke grundlag for at fastslå, at indklagede forud for det begrænsede udbud efter tjenesteydelsesdirektivet havde besluttet at prækvalificere det arkitektfirma, der havde projekteret det oprindelige skolebyggeri, og Klagenævnet tager derfor ikke klagen til følge på dette punkt. |
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