| | 32004L0018: c3-20Service contracts listed in Annex II A    
| 32004L0018 - Classic (3rd generation) | Article 20 | CHAPTER III
Arrangements for public service contracts
Article 20
Service contracts listed in Annex II A
Contracts which have as their object services listed in Annex II A shall be awarded in accordance with Articles 23 to 55. | | 32004L0017 - Utilities (3rd generation) | Article 31 | CHAPTER III
Rules applicable to service contracts
Article 31
Service contracts listed in Annex XVII A
Contracts which have as their object services listed in Annex XVII A shall be awarded in accordance with Articles 34 to 59. | | 31992L0050 - Services (2nd generation) | Article 8 | TITLE II
Two-tier application
Article 8
Contracts which have as their object services listed in Annex I A shall be awarded in accordance with the provisions of Titles III to VI. | | 31993L0038 - Utilities (2nd generation) | Article 15 | TITLE II
Two-tier application
Article 15
Supply and works contracts and contracts which have as their object services listed in Annex XVI A shall be awarded in accordance with the provisions of Titles III, IV and V. |
| Case | Pte | Ref | Text | C-454/06
Pressetext Nachrichtenagentur | 39-54 | S2-3.1
S2-8
S2-9 | 39 By its first question, the Bundesvergabeamt is referring to the transfer to APA-OTS in 2000 of the OTS services hitherto provided by APA. It asks, essentially, whether a change in the contractual partner, in circumstances such as those at issue in the main proceedings, is a new award of contract within the meaning of Articles 3(1), 8 and 9 of Directive 92/50.
40 As a rule, the substitution of a new contractual partner for the one to which the contracting authority had initially awarded the contract must be regarded as constituting a change to one of the essential terms of the public contract in question, unless that substitution was provided for in the terms of the initial contract, such as, by way of example, provision for sub-contracting.
41 According to the order for reference, APA-OTS is established as a limited liability company and therefore has separate legal personality from APA, the initial contractor.
42 It is also common ground that, since the OTS services were transferred from APA to APA-OTS in 2000, the contracting authority makes payment for those services directly to APA-OTS, and no longer to APA.
43 However, some of the specific characteristics of the transfer of the activity in question permit the conclusion that such amendments, made in a situation such as that at issue in the main proceedings, do not constitute a change to an essential term of the contract.
44 According to the information in the case-file, APA-OTS is a wholly-owned subsidiary of APA, APA has the power to instruct APA-OTS in the conduct and management of its business and the two companies are bound by a contract under which profit and loss are transferred to and assumed by APA. The case-file also shows that a person authorised to represent APA assured the contracting authority that, following the transfer of the OTS services, APA was jointly and severally liable with APA-OTS and that there would be no change in the overall performance experienced.
45 Such an arrangement is, in essence, an internal reorganisation of the contractual partner, which does not modify in any fundamental manner the terms of the initial contract.
46 In that context, the Bundesvergabeamt asks whether legal consequences follow from the fact that the contracting authority does not have an assurance that the shares in APA-OTS will not be transferred to third parties at any time during the currency of the contract.
47 If the shares in APA-OTS were transferred to a third party during the currency of the contract at issue in the main proceedings, this would no longer be an internal reorganisation of the initial contractual partner, but an actual change of contractual partner, which would, as a rule, be an amendment to an essential term of the contract. Such an occurrence would be liable to constitute a new award of contract within the meaning of Directive 92/50.
48 Similar reasoning would apply if the transfer of shares in the subsidiary to a third party was already provided for at the time of transfer of the activities to the subsidiary (see, to that effect, Case C- 29/04, Commission v Austria [2005] ECR I-9705, paragraphs 38 to 42).
49 Until such a development occurs, however, the analysis in paragraph 45 of this judgment remains valid, namely that the situation envisaged is an internal reorganisation of the contractual partner. This conclusion is not affected by the fact that there is no guarantee that the shares in the subsidiary will not be transferred to a third party at any time during the currency of the contract.
50 The Bundesvergabeamt also asks what legal consequences arise from the lack of guarantee, for the contracting authority, that there will be no changes in the composition of the shareholders in the service provider at any time during the currency of the contract.
51 Public contracts are regularly awarded to legal persons. If a legal person is established as a public company listed on a stock exchange, it follows from its very nature that the composition of its shareholders is liable to change at any time. As a rule, such a situation does not affect the validity of the award of a public contract to such a company. The situation may be otherwise in exceptional cases, such as when there are practices intended to circumvent Community rules governing public contracts. 52 Similar considerations apply in the case of public contracts awarded to legal persons established not as publicly-listed companies but as limited liability registered cooperatives, as in the main proceedings. Any changes to the composition of the shareholders in such a cooperative will not, as a rule, result in a material contractual amendment.
53 Accordingly, the conclusion in paragraph 45 of this judgment is not affected by those considerations either.
54 It follows that the answer to the first question must be that the terms ‘awarding’ and ‘awarded’, used in Articles 3(1), 8 and 9 of Directive 92/50, must be interpreted as not covering a situation, such as that in the main proceedings, where services supplied to the contracting authority by the initial service provider are transferred to another service provider established as a limited liability company, the sole shareholder of which is the initial service provider, controlling the new service provider and giving it instructions, provided that the initial service provider continues to assume responsibility for compliance with the contractual obligations. | C-454/06
Pressetext Nachrichtenagentur | 55-70 | S2-3.1
S2-8
S2-9 | 55 By its second question, the Bundesvergabeamt refers to the amendments made to the basic agreement by the first supplemental agreement, signed in 2001 and effective as from 1 January 2002. It asks, essentially, whether certain price amendments constitute a new award of a contract for the purposes of Directive 92/50.
56 This question concerns, first, the conversion of prices to euros without changing their intrinsic amount, secondly, the conversion of prices to euros entailing a reduction in their intrinsic amount and, thirdly, the reformulation of a price indexation clause.
57 The answer must be that, where, following the changeover to the euro, an existing contract is changed in the sense that the prices initially expressed in national currency are converted into euros, it is not a material contractual amendment but only an adjustment of the contract to accommodate changed external circumstances, provided that the amounts in euros are rounded off in accordance with the provisions in force, including those of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1).
58 Where the rounding off of the prices converted into euros exceeds the amount authorised by the relevant provisions, that is an amendment to the intrinsic amount of the prices provided for in the initial contract. The question then arises as to whether such a change in prices constitutes a new award of a contract.
59 It is evident that the price is an important condition of a public contract (see, to that effect, Commission v CAS Succhi di Frutta, paragraph 117).
60 Amending such a condition during the period of validity of the contract, in the absence of express authority to do so under the terms of the initial contract, might well infringe the principles of transparency and equal treatment as between tenderers (see, to that effect, Commission v CAS Succhi di Frutta, paragraph 121).
61 Nevertheless, the conversion of contract prices into euros during the course of the contract may be accompanied by an adjustment of their intrinsic amount without giving rise to a new award of a contract, provided the adjustment is minimal and objectively justified; this is so where it tends to facilitate the performance of the contract, for example, by simplifying billing procedures.
62 In the situation at issue in the main proceedings, the annual fee for the use of editorial articles and media archives was reduced by a mere 0.3% in order to give a round figure to facilitate calculations. Moreover, the per-line prices for inclusion of press releases in the OTS service were reduced by 2.94% and 1.47% for 2002 and 2003 respectively, so that they would be expressed in round figures, also liable to facilitate calculations. Not only did those price adjustments relate to a small amount, but they also operated to the detriment rather than to the advantage of the contractor, who consented to a reduction in the prices which would have resulted from the conversion and indexation rules normally applicable.
63 In such circumstances, it can be found that an adjustment to the prices of a public contract during its currency does not constitute an amendment to the essential conditions of that contract such as to constitute a new award of a contract within the meaning of Directive 92/50.
64 With respect to the reformulation of the indexation clause, the Court notes that Article 5(3) of the basic agreement provided inter alia that ‘[f]or the calculation of the indexation, the starting point [was to] be the 86 consumer price index (CPI 86) published by the Austrian Central Statistics Office (ÖSTAT) or the following index replacing it.’
65 It follows that the basic agreement had provided for the price index to which it referred to be replaced by a subsequent index.
66 The first supplemental agreement replaced the price index referred to in the basic agreement, namely the 1986 consumer price index (VPI 86) published by ÖSTAT, by a more recent index, namely the 1996 consumer price index (VPI 96), also published by ÖSTAT.
67 As stated in paragraph 19 of this judgment, that supplemental agreement used as a reference point the index calculated for 2001, the year in which it was concluded, instead of the one for 1994, the year in which the basic agreement was concluded. That updating of the reference point is consistent with the updating of the price index.
68 It follows that the first supplemental agreement merely applied the stipulations of the basic agreement as regards keeping the indexation clause up to date.
69 In such circumstances, the Court considers that the reference to a new price index does not constitute an amendment to the essential conditions of the initial agreement such as to constitute a new award of a contract within the meaning of Directive 92/50.
70 It follows that the answer to the second question must be that the terms ‘awarding’ and ‘awarded’, used in Articles 3(1) and 8 and 9 of Directive 92/50, must be interpreted as not covering an adjustment of the initial agreement to accommodate changed external circumstances, such as the conversion to euros of prices initially expressed in national currency, the minimal reduction in the prices in order to round them off, and the reference to a new price index where provision was made in the initial agreement to replace the price index fixed previously. | C-454/06
Pressetext Nachrichtenagentur | 71-88 | S2-3.1
S2-8
S2-9 | 71 By its third question, the Bundesvergabeamt refers to the amendments made to the basic agreement by the second supplemental agreement, signed in October 2005 and effective as from 1 January 2006. 72 The Bundesvergabeamt asks, essentially, whether a new award of a contract results, first, from a renewal of the waiver of the right to terminate the contract by notice and, secondly, from an increase in the rebates granted on the prices of certain services covered by the contract.
73 First of all, as regards the conclusion of a new waiver of the right to terminate the contract during the period of validity of a contract concluded for an indefinite period, the Court observes that the practice of concluding a public services contract for an indefinite period is in itself at odds with the scheme and purpose of the Community rules governing public contracts. Such a practice might, over time, impede competition between potential service providers and hinder the application of the provisions of Community directives governing advertising of procedures for the award of public contracts.
74 Nevertheless, Community law, as it currently stands, does not prohibit the conclusion of public service contracts for an indefinite period.
75 Likewise, a clause by which the parties undertake not to terminate for a given period a contract concluded for an indefinite period is not automatically considered to be unlawful under Community law governing public procurement.
76 As is apparent from paragraph 34 of this judgment, in determining whether the conclusion of such a clause constitutes a new award of contract, the relevant criterion is whether that clause must be regarded as being a material amendment to the initial contract (see, to that effect, Commission v France, paragraphs 44 and 46).
77 The clause at issue in the main proceedings formally sets out the waiver of any right to terminate the contract during the period from 2005 to 2008.
78 The Court notes, however, that, following the expiry on 31 December 1999 of the waiver of the right to terminate contained in the basic agreement, the contract at issue in the main proceedings could have been terminated at any time, subject to notice being given. It remained in effect, however, for the period from 2000 to 2005 inclusive, since neither the contracting authority nor the service provider exercised their right to terminate the contract.
79 There is nothing in the case-file to indicate that, during the period from 2005 to 2008 covered by the waiver of the right to terminate the contract, the contracting authority would have actually considered terminating the contract during its currency and put it out to tender again if that clause had not been present. Even if it had intended to do so, the time period envisaged by the waiver, namely three years, was not such that it would have been prevented from doing so for an excessive period in relation to the time necessary to organise such a procedure. In those circumstances, it has not been demonstrated that such a waiver of the right to terminate the contract, provided that it is not systematically re-inserted in the contract, entails a risk of distorting competition, to the detriment of potential new tenderers. Consequently, it cannot be held to be a material amendment to the initial agreement.
80 It follows that, in circumstances such as those at issue in the main proceedings, the presence of a waiver of the right to terminate the contract for a period of three years during the period of validity of a services contract concluded for an indefinite period does not constitute a new award of a contract within the meaning of Directive 92/50.
81 Secondly, regarding the higher rebate provided for in the second supplemental agreement, the Court observes that the basic agreement provided, in respect of the services in question, for ‘a price corresponding to the lowest graduated consumer price of the official tariff … less 15%’.
82 According to the information provided to the Court, that reference is to the degressive tariff applied by APA, in application of which the prices of the services in question are reduced when the use of those services by APA’s contractual partner increases.
83 According to the same information, the increase in the rate of the rebates from 15% to 25%, provided for by the second supplemental agreement, is tantamount to applying a lower price. Even though the formal presentation may be different, the reduction of a price and the increase of a rebate have a comparable economic effect.
84 In those circumstances, the increase of the rebate may be interpreted as coming within the ambit of the clauses laid down in the basic agreement.
85 Moreover, an increase in the rebate, which has the effect of reducing the remuneration received by the contractor as compared to what was initially provided for, does not shift the economic balance of the contract in favour of the contractor.
86 Additionally, the mere fact that the contracting authority obtains a greater rebate on part of the services covered by the contract is not liable to entail a distortion of competition to the detriment of potential tenderers.
87 It follows from the foregoing that, in a situation such as that at issue in the main proceedings, the fact of laying down, in a supplemental agreement, rebates greater than those initially provided for on certain volume-related prices within a specific area of supply, is not to be regarded as being a material contractual amendment and therefore is not a new award of a contract within the meaning of Directive 92/50.
88 Consequently, the answer to the third question must be that the terms ‘awarding’ and ‘awarded’, used Articles 3(1), 8 and 9 of Directive 92/50, must be interpreted as not covering a situation such as that at issue in the main proceedings, where a contracting authority, through the use of a supplemental agreement, agrees with the contractor, during the period of validity of a contract concluded with it for an indefinite period, to renew for a period of three years a waiver of the right to terminate the contract by notice, the waiver no longer being in force at the time of the amendment, and agrees with it to lay down higher rebates than those initially provided for in respect of certain volume-related prices within a specified area of supply. | C-414/03
Germany | 4-5+13 | S2-8 | 4 En 1994, le Landkreis Friesland a conclu un contrat d’enlèvement d’ordures. D’une durée de dix ans, ce contrat courait jusqu’au 31 décembre 2004 et portait sur un montant de 29 millions de DEM, soit environ 14,83 millions d’euros.
5 Après avoir mis la République fédérale d’Allemagne en mesure de présenter ses observations, la Commission a, le 18 octobre 2002, émis un avis motivé relevant que le marché en cause aurait dû faire l’objet d’un appel d’offre publié au Journal officiel des Communautés européennes et être passé conformément aux exigences prévues aux titres III à VI de la directive 92/50, et que cet État membre aurait dû mettre un terme audit contrat. Elle a dès lors invité la République fédérale d’Allemagne à se conformer à ses obligations résultant du traité CE dans un délai de deux mois à compter de la notification de cet avis. Insatisfaite de la réponse apportée par les autorités allemandes par lettre du 16 décembre 2002, la Commission a décidé d’introduire le présent recours.
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13 Eu égard à ce qui précède, il convient de constater que, un contrat d’enlèvement d’ordures ayant été passé par le Landkreis Friesland sans respecter les règles de publicité et de procédure prévues à l’article 8 de la directive 92/50, lu en combinaison avec les titres III à VI de cette directive, la République fédérale d’Allemagne a manqué aux obligations qui lui incombent en vertu de ladite directive. | C-126/03
Germany | 9-13 | S2-1.a.p1
S2-1.b.1
S2-8
S2-11.1 | 9. In support of its application, the Commission relies on a single complaint, alleging a breach of Article 8 of Directive 92/50, read in conjunction with Article 11(1) of that directive, on the ground that the City of Munich failed to make the contract at issue the subject of an invitation to tender.
10. It should be noted in that regard that under Article 8 of Directive 92/50, read in conjunction with Article 11(1) of that directive, public contracts which have as their object services listed in Annex I A must be awarded in accordance with the provisions of Titles III to VI of the directive, applying the open, restricted or negotiated procedures within the meaning of the directive.
11. Public service contracts' are defined in Article 1(a) of Directive 92/50 as being contracts for pecuniary interest concluded in writing between a service provider and a contracting authority.
12. Contracting authorities' are defined in Article 1(b) of Directive 92/50 as being the State, regional or local authorities, bodies governed by public law, associations formed by one or more of such authorities or bodies governed by public law'.
13. Accordingly, Article 8 of Directive 92/50, read in conjunction with Article 1(a) and (b) and Article 11(1) of the directive, provides that, where contracts for pecuniary interest concluded in writing between a service provider and a regional or local authority have as their object the services listed in Annex I A to the directive, they must be the subject of an open, restricted or negotiated procedure within the meaning of that directive. | C-126/03
Germany | 14-19 | S2-1.a.p1
S2-1.b.1
S2-8
S2-11.1 | 14. In the present case, it must be held that the contract at issue is a public contract for the purposes of Articles 8 and 11 of Directive 92/50, and that that contract should have been awarded in accordance with Titles III to VI of that directive.
15. The contract concluded between the City of Munich and Rethmann, under which that company undertook to transport waste from the discharge points in the Donauwald region to the Munich-North thermal power station, relates to a service covered by Annex I A to the directive and provided by an undertaking to a regional or local authority. It is accordingly a contract for pecuniary interest concluded in writing between a service provider and a contracting authority.
16. In that regard, the arguments relied on by the German Government to show that the contract at issue is not a public contract for the purposes of Articles 8 and 11 of Directive 92/50 cannot be accepted.
17. First of all, the German Government maintains that the City of Munich is not, in relation to the contract at issue, a contracting authority' for the purposes of Article 1(b) of Directive 92/50 and that the contract is not a public contract' for the purposes of Article 1(a) of the directive. According to that government, the contract does not fall within the scope of activities in the general interest of the City of Munich, but comprises an independent economic activity, which is clearly distinct and subject to competition, that is to say the operation of the MunichNorth thermal power station.
18. It must be answered in that regard that, under Article 1(b) of Directive 92/50, regional or local authorities are, by definition, contracting authorities. It is clear from case-law that Article 1(a) of the directive makes no distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task (see, by way of analogy, in relation to Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the awarding of public works contracts (OJ 1993 L 199, p. 54), Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 32). It is likewise irrelevant that the contracting authority intends to operate as a provider of services itself and that the contract in question aims, in that context, to subcontract a part of the activities to a third party. It is conceivable that the decision of the contracting authority as to the choice of that third party will be based on considerations that are not economic ones. It follows that, whatever the nature and context of the contract at issue may be, it constitutes a public contract' within the meaning of Article 1(a) of Directive 92/50.
19. As regards the argument that the activity of transporting waste carried on by Rethmann would, in the end result, be the subject of two invitations to tender, it is sufficient to observe that that activity is the subject of two separate public contracts, that is to say the one awarded by the City of Munich and the one, concerning more generally the disposal of waste in the Donauwald region, awarded by AWG Donau-Wald, each of which required to be the subject of an invitation to tender, and that the application of Directive 92/50 thus has the result that the service provided by Rethmann required to be the subject of two successive invitations to tender. | C-126/03
Germany | 20 | S2-8
S2-11.1 | 20. As regards the argument that there was no use of public resources of the City of Munich in the present case, it must be held that use of that kind is not a factor that determines whether or not there is a public contract for the purposes of Articles 8 and 11 of Directive 92/50. | C-125/03
Germany | 18-21 | S2-8
S2-15.2
S2-16.1 | 18 À l’appui de son recours, la Commission fait valoir, comme grief unique, que les marchés en question auraient dû faire l’objet d’un appel d’offres dans le Journal officiel des Communautés européennes conformément aux articles 8, 15, paragraphe 2, et 16, paragraphe 1, de la directive 92/50.
19 Le gouvernement allemand admet que les pouvoirs adjudicateurs en question auraient dû passer un appel d’offres pour leurs marchés de services dans le Journal officiel des Communautés européennes et qu’il n’a pas été procédé à cette publication.
20 Dès lors le recours introduit par la Commission est fondé. 21 Eu égard à ce qui précède, il convient de constater que, du fait que les contrats d’enlèvement d’ordures conclus par les villes de Lüdinghausen et d’Olfen ainsi que par les communes de Nordkirchen, de Senden et de Ascheberg ont été passés au mépris des règles de publicité prévues par les dispositions combinées des articles 8, 15, paragraphe 2, et 16, paragraphe 1, de la directive 92/50, la République fédérale d’Allemagne a manqué aux obligations qui lui incombent en vertu de cette directive. | C-20/01 & C-28/01
Germany | 52-55 | S2-8
S2-15.2 | 52 As regards Case C-20/01, it is not disputed that the conditions on which Directive 92/50 applies were met. As the Advocate General observes at point 65 of his Opinion, the treatment of waste water is a service within the meaning of Article 8 and Annex IA, category 16, of the directive. The construction of certain facilities was ancillary to the main purpose of the contract which the Municipality of Bockhorn entered into with EWE. The value of the contract far exceeds the threshold laid down in Article 7 of the directive.
53 Under Article 8 and Article 15(2) of Directive 92/50, the contract should consequently have been awarded in accordance with the provisions of the directive. It is established, and the German Government does not deny, that the Municipality of Bockhorn did not award the contract in that way.
54 The Federal Republic of Germany's defence on the substance refers essentially to the arguments put forward to challenge the admissibility of the action. For the reasons set out at paragraphs 29 to 43 of this judgment, those arguments must be rejected.
55 It follows that the Commission's action in Case C-20/01 is founded. |
| Case | Pte | Ref | Text | N-080710
European Land Solutions | 18+K5 | C3-2.transp
C3-20-impl
C3-21-impl
C3-II.A
C3-II.B | Ad påstand 6
18. Med den bemærkning, at indklagede ikke har handlet, som om der var tale om et udbud omfattet af Bilag II B, og den fejlagtige klassificering således ikke har haft betydning, tages påstanden til følge.
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K5. Ad påstand 6 Indklagede har handlet i strid med Udbudsdirektivet ved i udbudsbekendtgørelsen at anføre, at den udbudte tjenesteydelse tilhører kategori 27 »andre ydelser« og dermed er omfattet af bilag II B, idet den udbudte tjenesteydelse tilhører kategori 16 »Kloakering og affaldsbortskaffelse: rensning og lignende tjenesteydelser« og dermed er omfattet af bilag IIA. | N-050309
A-1 Communication | 1 | NPL2-1.4-impl
S2-8
S2-9-impl
S2-I.B-impl
ECT-EquTran
KNL2-1.1.1-impl | 1. Tolkeydelser er ikke omfattet af Tjenesteydelsesdirektivets udbudspligt, da tolkeydelser ikke er medtaget i opregningen i direktivets bilag I A, jfr. direktivets artikel 8. Klagenævnet har imidlertid i kendelsen af 14. oktober 2004 i sagen SK Tolkeservice ApS mod indklagede fastslået følgende: Det udbud, der er tale om, er som følge af det EU-retlige gennemsigtighedsprincip omfattet af Tjenesteydelsesdirektivets regler om udbudspligtige tjenesteydelser, fordi indklagede som offentlig ordregiver valgte at udbyde ydelserne i henhold til Tjenesteydelsesdirektivet uden at tage forbehold om, at direktivets regler om udbudspligtige tjenesteydelser ikke skulle finde anvendelse. | N-990920
JyllandsPosten | 1-5 | S2-1.a
S2-8
S2-I.A | 1. Det følger af Tjenesteydelsesdirektivets artikel 1, a), at optagelse mod betaling af annoncer fra en offentlig myndighed er en tjenesteydelse i direktivets forstand. Afgørende for, om der er udbudspligt efter direktivet vedrørende optagelse af sådanne annoncer, er herefter, om optagelsen er omfattet af opregningen i direktivets bilag I A, jf. direktivets artikel 8. Den eneste kategori i bilag I A, der kan komme på tale, er kategori 13 om »Reklamevirksomhed «. Om denne kategori kan finde anvendelse, må afhænge af forståelsen af CPC–glossarets punkt 871, til hvilket der henvises i bilaget ud for kategori 13.
2. CPC–glossaret, der er udfærdiget af De Forenede Nationer, sigter ikke på at give en beskrivelse af de tjenesteydelser, der skal udbydes i henhold til Tjenesteydelsesdirektivet, men har efter det foreliggende til formål at etablere en internationalt ensartet produktnomenklatur til brug for statistiske sammenligninger. Henvisningerne til CPC–glossaret i Tjenesteydelsesdirektivets bilag I A og I B må forstås på denne baggrund.
3. Det må antages, at henvisningen til CPC–glossarets punkt 871 ud for kategori 13 i Tjenesteydelsesdirektivets bilag I A ikke sigter til den blotte optagelse af annoncer, men derimod til den tjenesteydelse, der består af planlægning, udarbejdelse og formidling af annoncering m.m., og som typisk udøves af reklamebureauer. Denne forståelse er den mest nærliggende ud fra CPC–glossarets tekst. Forståelsen bestyrkes endvidere af, at glossaret anvender ordet »soliciting« om nogle af ydelserne under punkt 871, og af, at der i den franske version af Rådsforordning nr. 3696/93 anvendes betegnelsen »services des agences publicitaires« om nogle af disse ydelser.
4. Det må således antages, at den blotte optagelse af annoncer ikke er omfattet af Tjenesteydelsesdirektivets bilag I A og dermed heller ikke af udbudspligten i henhold til direktivet, jf. dettes artikel 8. I konsekvens heraf må det endvidere antages, at en offentlig myndigheds indgåelse af rabat– og prisaftaler med et annoncemedium ikke er omfattet af udbudspligten i henhold til direktivet.
5. Allerede som følge heraf tages klagen ikke til følge. |
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