| | 32004L0018: c3-56Scope    
| 32004L0018 - Classic (3rd generation) | Article 56 | TITLE III
RULES ON PUBLIC WORKS CONCESSIONS
CHAPTER I
Rules governing public works concessions
Article 56
Scope
This Chapter shall apply to all public works concession contracts concluded by the contracting authorities where the value of the contracts is equal to or greater than EUR 6242000.
The value shall be calculated in accordance with the rules applicable to public works contracts defined in Article 9. | | 32004R1874 - First joint amendment of Classic and Utilities (3rd generation) | Article 2.3=C56 | | 3. In Article 56, the amount "EUR 6242000" is replaced by "EUR 5923000"; | | 32005R2083 - Fourth joint amendment of Classic and Utilities (3rd generation) | Article 2.3=C56 | | 3. In Article 56, the amount "EUR 5923000" is replaced by "EUR 5278000". | | 32007R1422 - Fifth joint amendment of Classic and Utilities (3rd generation) | Article 2.3=C56 | | 3. In Article 56, the amount ‘EUR 5 278 000’ is replaced by ‘EUR 5 150 000’. | | 31993L0037 - Works (2nd generation) | Article 3.1 | Article 3
1. Should contracting authorities conclude a public works concession contract, the advertising rules as described in Article 11 (3), (6), (7) and (9) to (13), and in Article 15, shall apply to that contract when its value is not less than ECU 5 000 000. | | 31971L0305 - Works (1st generation) | Article 3.1.p2 | | ..... the provisions of this directive shall not apply to this so called " concession " contract. In all other cases, application of the procedures for the award of public contracts shall be compulsory. | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.2=W-1b.1 & 1.4=W-3.1.p2 | Article 1b
1. Should contracting authorities conclude a public works concession contract as defined in Article 1 (d), the advertising rules as described in Article 12 (3), (6), (7) and (9) to (13), and in Article 15a, shall apply to that contract when its value is not less than ECU 5 000 000.
4. Article 3 (1) ..... is hereby repealed |
| Case | Pte | Ref | Text | C-220/05
Auroux | 56-57 | W2-3.1
W2-6.1 | 56. Finally, it must be recalled that, under Article 3 of the Directive, public works concession contracts are subject to the advertising rules laid down by the Directive where the threshold referred to in that provision is reached. Since an essential characteristic of concessions is that the consideration for the works comes either wholly or partly from third parties, it would be contrary to the purpose and scheme which underpin the Directive that, in the context of public works contracts, the amounts coming from third parties were excluded from the calculation of the value of the contract for the purposes of Article 6 of the Directive.
57. Having regard to the foregoing, the answer to the second question must be that, in order to determine the value of a contract for the purpose of Article 6 of the Directive, account must be taken of the total value of the works contract from the point of view of a potential tenderer, including not only the total amounts to be paid by the contracting authority but also all the revenue received from third parties. | | C-220/05 | 58-62 | C3-11
S2-6
W2-na | 58. By its third question, the national court asks, essentially, whether, in order to conclude an agreement such as that in the main proceedings, a contracting authority is exempt from using the procedures for the award of public works contracts laid down by the Directive on the ground that, in accordance with national law, that agreement may be concluded only with certain legal persons which themselves have the capacity of contracting authority and which will be obliged in turn to apply those procedures in order to award any subsequent contracts.
59. It must be observed, as a preliminary point, that the only permitted exceptions to the application of the Directive are those which are expressly mentioned in it (see, by analogy, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 43, and Case C340/04 Carbotermo and Consorzio Alisei [2006] ECR I-4137, paragraph 45).
60. The Directive does not contain any provision comparable to that in Article 6 of Directive 92/50, which excludes from its scope public contracts awarded, under certain conditions, to contracting authorities (see, by analogy, Teckal , paragraph 44, and Carbotermo and Consorzio Alisei , paragraph 46).
61. It must be observed that Article 11 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) provides an exception as regards contracting authorities which purchase, inter alia, works from a central purchasing body, as defined in Article 1(10) of that directive. However, that provision is not applicable ratione temporis to the facts in the main proceedings.
62. It follows that a contracting authority is not exempt from using the procedures for the award of public works contracts provided for by the Directive, on the ground that it plans to conclude the contract concerned with a second contracting authority (see, by analogy, Teckal , paragraph 51; Case C-94/99 ARGE [2000] ECR I-11037, paragraph 40; and Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 47). Furthermore, that finding does not affect the obligation on the latter contracting authority to apply in its turn the tendering procedures laid down in the Directive (see, by analogy, Teckal , paragraph 45). | C-187/04 & C-188/04
Italy | 31 | W2-1.c
W2-7.3.a
W2-7.3.d
W2-3.1
W2-11.3
W2-11.6
W2-11.7 | 31 Dans ces conditions, il convient de constater que, dans la mesure où l’ANAS a confié la construction et la gestion des autoroutes de la Valtrompia et de la Pedemontana Veneta Ovest à la société concessionnaire dans le cadre de concessions directes sans publication préalable d’un avis de marché, alors même que les conditions nécessaires à cet égard n’étaient pas réunies, la République italienne a manqué aux obligations qui lui incombent en vertu de la directive 93/37, et plus particulièrement des articles 3, paragraphe 1, et 11, paragraphes 3, 6 et 7 de celle-ci. | C-57/01
Makedonika | 18+58-63 | W2-3.1
W2-21 | 18 Article 6(2) of the supplementary notice specified that the preselected consortia were authorised to take part in the form that they had taken during the first stage of the procedure, that the creation of groupings or other forms of cooperation between them was strictly precluded and, finally, that it was possible for a consortium to be enlarged by the addition of a new member, provided that the new member had not been included in any other consortium preselected to take part in the second stage of the procedure.
.....
58 As regards the first part of the question, the order for reference does not indicate whether the contract at issue in the main proceedings is a `public works contract' or a `public works concession' within the meaning of Directive 93/37. It is not for the Court, on a reference for a preliminary ruling, to resolve that question. In such circumstances, the question must be addressed by examining each of those hypotheses in turn.
59 If the contract at issue were a `public works contract' within the meaning of Directive 93/37, the directive would apply as provided in Articles 4 to 6.
60 The only provision of Directive 93/37 dealing with groups of contractors is Article 21. That is confined, first, to stating that tenders may be submitted by groups of contractors and, second, to preventing them from being required to assume a specific legal form before the contract has been awarded to the group selected.
61 It must be pointed out that Article 21 makes no provision about the composition of such groups. Rules about their composition are thus a matter for the Member States.
62 The same is true a fortiori if the contract at issue in the main proceedings is a `public works concession' within the meaning of Directive 93/37. It follows from Article 3(1) of the directive that Article 21 does not even apply to public works concessions.
63 Consequently, the answer to the first part of the question must be that Directive 93/37 does not preclude national rules which prohibit a change in the composition of a group of contractors taking part in a procedure for the award of a public works contract or a public works concession which occurs after submission of tenders. |
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