| | ECT-50Definition of services and discrimination    
| ECT (2003) | Article 50 | Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals. |
| Case | Pte | Ref | Text | C-264/03
France | 42-48 | S2-1.c.s1
ECT-50 | 42. Finally, Article 1(c) of Directive 92/50 defines service provider' as any natural or legal person, including a public body, which offers services'. Article 50 EC treats services' as such where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons'. The contracts which have as their object services listed in Annex IA to Directive 92/50 are to be awarded in accordance with the provisions of Titles III to VI and those listed in Annex IB in accordance with Articles 14 and 16 of that directive.
43. The persons which may be appointed to fulfil the responsibilities of the delegated project contractor are listed in Article 4 of Law No 85704. It is appropriate to observe that some of those persons may, themselves, be contracting authorities within the meaning of Article 1(b) of Directive 92/50. While Article 6 of that directive excludes from its scope public service contracts awarded to an entity which is itself a contracting authority on the basis of an exclusive right which it enjoys pursuant to a published law, regulation or administrative provision, the fact remains that those conditions are not satisfied in the circumstances of this case.
44. Persons eligible to be appointed to fulfil the responsibilities of the delegated project contractor may be regarded as service providers', since the responsibilities entrusted to them, by the agency agreement of delegated project contracting, under Article 3 of Law No 85704, correspond to the provision of services within the meaning of Community law.
45. In that regard, the argument developed by the French Government to establish that the agent does not provide services cannot be accepted.
46. It is clear from Article 3 of Law No 85704, which lists the responsibilities which the contracting authority may appoint an agent to fulfil, that the agency agreement of delegated project contracting is not only a contract by which the agent undertakes to represent the contracting authority. Those responsibilities include various tasks corresponding, first, to providing technical and administrative assistance and, second, to tasks the object of which is the representation of the contracting authority.
47. First of all, as regards the question whether the function of representation is, as the French Government contends, inseparable from all the actions performed by the agent on behalf of the principal, it must be observed that it is perfectly feasible to separate those different tasks. Indeed, the contracting authority may appoint an agent, under Article 3 of Law No 85704, to fulfil all or any of the responsibilities listed in that provision. It is important also to state, as the Advocate General correctly noted in point 37 of his Opinion, that there is nothing to prevent the possibility of those tasks being subject to different rules.
48. Next, as regards the nature of those responsibilities, it is appropriate to observe that the question whether the agent contributes to the performance of a task in the public interest is not decisive in determining whether or not he provides services. It is not unusual, in the field of public procurement, for the contracting authority to entrust to a third party an economic task intended to meet a public interest need. That statement is corroborated, in particular, by the fact that Directive 92/50 applies, with certain exceptions, to public service contracts awarded by contracting authorities in the field of defence. |
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