| | 32004L0018: c3-63Advertising rules: threshold and exceptions    
| 32004L0018 - Classic (3rd generation) | Article 63 | CHAPTER III
Rules applicable to contracts awarded by concessionaires which are not contracting authorities
Article 63
Advertising rules: threshold and exceptions
1. The Member States shall take the necessary measures to ensure that public works concessionaires which are not contracting authorities apply the advertising rules defined in Article 64 when awarding works contracts to third parties where the value of such contracts is equal to or greater than EUR 6242000.
Advertising shall not, however, be required where a works contract satisfies the conditions listed in Article 31.
The values of contracts shall be calculated in accordance with the rules applicable to public works contracts laid down in Article 9.
2. Groups of undertakings which have been formed to obtain the concession or undertakings related to them shall not be considered third parties.
"Related undertaking" shall mean any undertaking over which the concessionaire can exert a dominant influence, whether directly or indirectly, or any undertaking which can exert a dominant influence on the concessionaire or which, as the concessionaire, is subject to the dominant influence of another undertaking as a result of ownership, financial participation or the rules which govern it. A dominant influence on the part of an undertaking is presumed when, directly or indirectly in relation to another undertaking, it:
(a) holds a majority of the undertaking's subscribed capital;
(b) controls a majority of the votes attached to the shares issued by the undertaking; or
(c) can appoint more than half of the undertaking's administrative, management or supervisory body.
The exhaustive list of such undertakings shall be included in the application for the concession. That list shall be brought up to date following any subsequent changes in the relationship between the undertakings. | | 32004R1874 - First joint amendment of Classic and Utilities (3rd generation) | Article 2.4=C63.1.1 | | 4. In the first subparagraph of Article 63(1), the amount "EUR 6242000" is replaced by "EUR 5923000"; | | 32005R2083 - Fourth joint amendment of Classic and Utilities (3rd generation) | Article 2.4=C63.1 | | 4. In the first subparagraph of Article 63(1), the amount "EUR 5923000" is replaced by "EUR 5278000". | | 32007R1422 - Fifth joint amendment of Classic and Utilities (3rd generation) | Article 2.4=C63.1 | | 4. In the first subparagraph of Article 63(1), the amount ‘EUR 5 278 000’ is replaced by ‘EUR 5 150 000’. | | 31993L0037 - Works (2nd generation) | Article 3.4 | 4. Member States shall take the necessary steps to ensure that a concessionnaire other than a contracting authority shall apply the advertising rules listed in Article 11 (4), (6), (7), and (9) to (13), and in Article 16, in respect of the contracts which it awards to third parties when the value of the contracts is not less than ECU 5 000 000. An advertisement is not, however, required where works contracts meet the conditions laid down in Article 7 (3).
Undertakings which have formed a group in order to obtain the concession contract, or undertakings affiliated to them, shall not be regarded as third parties.
An 'affiliated undertaking' means any undertaking over which the concessionnaire may exercise, directly or indirectly, a dominant influence or which may exercise a dominant influence over the concessionnaire or which, in common with the concessionnaire, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation or the rules which govern it. A dominant influence on the part of an undertaking shall be presumed when, directly or indirectly in relation to another undertaking, it:
- holds the major part of the undertaking's subscribed capital, or
- controls the majority of the votes attaching to shares issued by the undertakings, or
- can appoint more than half of the members of the undertaking's administrative, managerial or supervisory body.
A comprehensive list of these undertakings shall be enclosed with the candidature for the concession. This list shall be brought up to date following any subsequent changes in the relationship between the undertakings. | | 31971L0305 - Works (1st generation) | Article 3.3 | | 3. When the state, a regional or local authority or one of the legal persons governed by public law specified in annex i grants to a concessionaire other than an authority awarding contracts the right to have public works carried out and to exploit them, the concession contract shall stipulate that such concessionaire must observe the principle of non-discrimination on grounds of nationality in respect of contracts awarded to third parties. | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.2=W-1b.4 & 1.4=W-3.3 | 4. Member States shall take the necessary steps to ensure that a concessionaire other than an authority awarding contracts shall apply the advertising rules listed in Article 12 (4), (6), (7), and (9) to (13), and in Article 15b, in respect of the contracts which it awards to third parties when the value of the contracts is not less than ECU 5 000 000. Advertising rules shall not be applied where works contracts meet the conditions laid down in Article 5 (3).
Undertakings which have formed a group in order to obtain the concession contract, or undertakings affiliated to them, shall not be regarded as third parties. An "affiliated undertaking'' means any undertaking over which the concessionaire may exercise, directly or indirectly, a dominant influence or which may exercise a dominant influence over the concessionaire or which, in common with the concessionaire, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation or the rules which govern it. A dominant influence on the part of an undertaking shall be presumed when, directly or indirectly in relation to another undertaking, it:
- holds the major part of the undertaking's subscribed capital, or
- controls the majority of the votes attaching to shares issued by the undertakings, or
- can appoint more than half of the members of the undertaking's administrative, managerial or supervisory body.
A comprehensive list of these undertakings shall be enclosed with the candidature for the concession. This list shall be brought up to date following any subsequent changes in the relationship between the undertaking.'
4. Article 3 ..... (3) is hereby repealed |
| Case | Pte | Ref | Text | C-399/98
Ordine degli Architetti | 99-103 | W2-3.4
W2-7.3.b | 99 Consequently, the municipal authorities are under an obligation to comply with the procedures laid down in the Directive whenever they award a public works contract of that nature.
100 That does not mean that, in cases concerning the execution of infrastructure works, the Directive is complied with only if the municipal authorities themselves apply the award-of-contract procedures laid down therein. The Directive would still be given full effect if the national legislation allowed the municipal authorities to require the developer holding the building permit, under the agreements concluded with them, to carry out the work contracted for in accordance with the procedures laid down in the Directive so as to discharge their own obligations under the Directive. In such a case, the developer must be regarded, by virtue of the agreements concluded with the municipality exempting him from the infrastructure contribution in return for the execution of public infrastructure works, as the holder of an express mandate granted by the municipality for the construction of that work. Article 3(4) of the Directive expressly allows for the possibility of the rules concerning publicity to be applied by persons other than the contracting authority in cases where public works are contracted out.
101 With regard to the procedures laid down by the Directive, it is clear from Articles 7(4) and 11(2) and (9), read together, that contracting authorities which wish to award a public works contract must advertise their intention by publishing a notice in the Official Journal of the European Communities, except in any of the cases exhaustively listed in Article 7(3) of the Directive where the contracting authority is authorised to use the negotiated procedure without first publishing a contract notice.
102 In the present case, there is nothing in the documents before the Court to suggest that the direct execution of infrastructure works under the conditions laid down by the Italian legislation on urban development is capable of falling within one of the cases contemplated in Article 7(3).
103 It should therefore be stated in answer to the first question that the Directive precludes national urban development legislation under which, without the procedures laid down in the Directive being applied, the holder of a building permit or approved development plan may execute infrastructure works directly, by way of total or partial set-off against the contribution payable in respect of the grant of the permit, in cases where the value of that work is the same as or exceeds the ceiling fixed by the Directive. |
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