| | 32004L0018: c3-1.2.aPublic contracts    
| 32004L0018 - Classic (3rd generation) | Article 1.2.a | | 2. (a) "Public contracts" are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive. | | 32004L0017 - Utilities (3rd generation) | Article 1.2.a | | 2. (a) "Supply, works and service contracts" are contracts for pecuniary interest concluded in writing between one or more of the contracting entities referred to in Article 2(2), and one or more contractors, suppliers, or service providers. | | 31993L0037 - Works (2nd generation) | Article 1.a.p1 | | (a) 'public works contracts' are contracts for pecuniary interest concluded in writing between a contractor and a contracting authority as defined in (b), | | 31993L0036 - Goods (2nd generation) | Article 1.a.s1.p1&~ | | (a) 'public supply contracts' are contracts for pecuniary interest concluded in writing ..... between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below. | | 31992L0050 - Services (2nd generation) | Article 1.a | | (a) public service contracts shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority, | | 31993L0038 - Utilities (2nd generation) | Article 1.4.1.s1.p1 | | 4. 'supply, works and service contracts' shall mean contracts for pecuniary interest concluded in writing between one of the contracting entities referred to in Article 2, and a supplier, a contractor or a service provider, | | 31971L0305 - Works (1st generation) | Article 1.a.p1 | | (a) " public works contracts " are contracts for pecuniary consideration concluded in writing between a contractor (a natural or legal person) and an authority awarding contracts as defined under (b), | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.1=W-1.a.p1 | | (a) "public works contracts'' are contracts for pecuniary interest concluded in writing between a contractor and a contracting authority as defined in (b), ..... | | 31977L0062 - Goods (1st generation) | Article 1.a.s1.p1 | | (a) "public supply contracts" shall be contracts for pecuniary consideration concluded in writing between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below ..... | | 31988L0295 - Second amendment of Goods (1st generation) | Article 2.1.s1.p1+3=G1-1.a.s1.p1 | Article 2
In Article 1:
1. Point (a) is replaced by the following:
(a) ``public supply contracts'' shall be contracts for pecuniary interest concluded in writing ..... between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below. | | 31990L0531 - Utilities (1st generation) | Article A-1.3.1.s1 | | 3. supply and works contracts shall mean contracts for pecuniary interest concluded in writing between one of the contracting entities referred to in Article 2 and a supplier or contractor and which have as their object: |
| 32002R1605 - Community (4th generation) - Council Q4 | Article 88.s1-2 | 1. Public contracts are contracts for pecuniary interest concluded in writing by a contracting authority within the meaning of Articles 104 and 167, in order to obtain, against payment of a price paid in whole or in part from the budget, the supply of movable or immovable assets, the execution of works or the provision of services.
These contracts comprise: | | 32006R1995 - First amendment of Community (4th generation) - Council Q4A1 | Article 1.47=Q4-88.s1-2 | 1. Public contracts are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities within the meaning of Articles 104 and 167, in order to obtain, against payment of a price paid in whole or in part from the budget, the supply of movable or immovable assets, the execution of works or the provision of services.
These contracts comprise: | | 31977Q1231 - Community (3rd generation) - Council Q3 | Article 50.s1 | | Contracts for the purchase or hiring of goods, for the provision of services or for construction works shall be in writing. | | General Terms GT | Article 3 | 3.1 The contracts shall be made binding by the agreement in writing of the parties thereto.
3.2 A contract shall be concluded by notification to the tenderer that his tender has been accepted. Such notification shall be in the form of a purchase order or letter.
3.3 If the acceptance does not conform in all respects with the tender or if the Commission's decision is advised after the expiry of the period during which the tender was valid, the conclusion of the contract shall be subject to the tenderer's agreement in writing.
3.4 The contract may also take the form of a contract signed by both parties. [Quote from case T-203/96] |
| Case | Pte | Ref | Text | C-454/06
Pressetext Nachrichtenagentur | 29-38 | S2-1.a.p1-imp
S2-11.3.e
S2-11.3.f | 29 By its first three questions, the Bundesvergabeamt asks, essentially, in which circumstances amendments to an existing agreement between a contracting authority and a service provider may be regarded as constituting a new award of a public services contract within the meaning of Directive 92/50.
30 Directive 92/50 does not provide a specific answer to those questions, but it does contain a number of pertinent indications which should be placed in the overall framework of Community rules governing public procurement.
31 It is clear from the case-law that the principal objective of the Community rules in the field of public procurement is to ensure the free movement of services and the opening-up to undistorted competition in all the Member States (see Case 26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 44). That two-fold objective is expressly set out in the second, sixth and twentieth recitals in the preamble to Directive 92/50.
32 In order to pursue that two-fold objective, Community law applies inter alia the principle of nondiscrimination on grounds of nationality, the principle of equal treatment of tenderers and the obligation of transparency resulting therefrom (see, to that effect, Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31; Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraphs 60 and 61; and Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 108 and 109).
33 Directive 92/50 implements those principles and that obligation of transparency in respect of contracts coming within its ambit and concerning, either solely or for the most part, services listed in Annex I A thereto, by requiring inter alia certain award procedures. For contracts coming within its ambit and concerning, either solely or for the most part, services listed in Annex I B thereto, the directive does not impose the same rules for the award procedures, but that category of public contracts nevertheless remains subject to the fundamental rules of Community law and the obligation of transparency resulting therefrom (see, to that effect, Case C-507/03 Commission v Ireland [2007] ECR I-0000, paragraphs 26, 30 and 31).
34 In order to ensure transparency of procedures and equal treatment of tenderers, amendments to the provisions of a public contract during the currency of the contract constitute a new award of a contract within the meaning of Directive 92/50 when they are materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract (see, to that effect, Case C-337/98 Commission v France [2000] ECR I-8377, paragraphs 44 and 46).
35 An amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted.
36 Likewise, an amendment to the initial contract may be regarded as being material when it extends the scope of the contract considerably to encompass services not initially covered. This latter interpretation is confirmed in Article 11(3)(e) and (f) of Directive 92/50, which imposes, in respect of contracts concerning, either solely or for the most part, services listed in Annex I A thereto, restrictions on the extent to which contracting authorities may use the negotiated procedure for awarding services in addition to those covered by an initial contract.
37 An amendment may also be regarded as being material when it changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the terms of the initial contract.
38 It is in the light of the aforegoing considerations that the questions referred to the Court are to be answered. | C-393/06
Ing. Aigner | 49-59 | C3-1.2.a-impl
C3-1.8.1-impl
U3-1.2.a-impl
U3-1.7.1 | 49. By its third question, the referring court asks whether all contracts awarded by an entity which is a body governed by public law, within the meaning of Directive 2004/17 or Directive 2004/18, are to be subject to the rules of one or the other of those directives if, through effective precautions, a clear separation is possible between the activities carried out by that body to accomplish its task of meeting needs in the general interest and the activities which it carries out in competitive conditions, so that cross financing between the two types of activities can be excluded.
50. It should be borne in mind in that regard that the problem underlying that question was examined by the Court for the first time in the case which gave rise to the judgment in Mannesmann Anlagenbau Austria and Others relating to the interpretation of Directive 93/37 on public works contracts, and that the Court came to the conclusion, in paragraph 35 of that judgment, that all contracts, of whatever nature, entered into by a contracting authority were to be subject to the rules of that directive.
51. The Court reiterated that position, with regard to public service contracts, in the judgments in BFI Holding (paragraphs 55 and 56) and Korhonen (paragraphs 57 and 58) and, with regard to public supply contracts, in the judgment in Adolf Truley (paragraph 56). That position also applies to Directive 2004/18, which represents a recasting of the provisions of all the preceding directives on the award of public contracts which it follows (see, to that effect, Bayerischer Rundfunk , paragraph 30).
52. That conclusion is inescapable also in respect of entities which use an accounting system intended to make a clear internal separation between the activities carried out by them to accomplish their task of meeting needs in the general interest and activities which they carry out in competitive conditions.
53. As the Advocate General points out in points 64 and 65 of his Opinion, there must be serious doubts that, in reality, it is possible to establish such a separation between the different activities of one entity consisting of a single legal person which has a single system of assets and property and whose administrative and management decisions are taken in unitary fashion, even ignoring the many other practical obstacles with regard to reviewing before and after the event the total separation between the different spheres of activity of the entity concerned and the classification of the activity in question as belonging to a particular sphere.
54. Thus, having regard to the reasons of legal certainty, transparency and predictability which govern the implementation of procedures for all public procurement, the case-law of the Court set out in paragraphs 50 and 51 of the present judgment must be followed.
55. Nevertheless, as is apparent from paragraph 49 of the present judgment, the question posed by the referring court at the same time relates to Directives 2004/17 and 2004/18.
56. In that regard, it should be noted that, in the context of the examination of the second question referred for a preliminary ruling, it was held that an entity such as Fernwärme Wien is to be regarded as a body governed by public law within the meaning of Directive 2004/17 or of Directive 2004/18. Furthermore, in examining the first question referred for a preliminary ruling, the Court concluded that a contracting entity, within the meaning of Directive 2004/17, is required to apply the procedure laid down in that directive only for the award of contracts which relate to activities carried out by that entity in one or more of the sectors listed in Articles 3 to 7 thereof.
57. It is appropriate to state that, in accordance with the case-law of the Court, contracts awarded in the sphere of one of the activities expressly listed in Articles 3 to 7 of Directive 2004/17 and contracts which, although different in nature and thus capable normally, as such, of falling within the scope of Directive 2004/18, are used in the exercise of activities defined in Directive 2004/17 fall within the scope of the latter directive (see, to that effect, Strabag and Kostmann , paragraphs 41 and 42).
58. Consequently, the contracts awarded by an entity such as Fernwärme Wien are covered by the procedures laid down in Directive 2004/17 since they are connected with an activity which it carries out in the sectors listed in Articles 3 to 7 thereof. However, all other contracts awarded by such an entity in connection with the exercise of other activities are covered by the procedures laid down in Directive 2004/18.
59. The answer to the third question must therefore be that all contracts awarded by an entity which is a body governed by public law, within the meaning of Directive 2004/17 or Directive 2004/18, which relate to activities carried out by that entity in one or more of the sectors listed in Articles 3 to 7 of Directive 2004/17 must be subject to the procedures laid down in that directive. However, all other contracts awarded by such an entity in connection with the exercise of other activities are covered by the procedures laid down in Directive 2004/18. Each of these two directives applies without distinction between the activities carried out by that entity to accomplish its task of meeting needs in the general interest and activities which it carries out under competitive conditions, and even where there is an accounting system intended to make a clear internal separation between those activities in order to avoid cross-financing between those sectors. | C-220/06
Asociacion Profesional de Empresas | 42-46 | S2-1.a | 42. It is only in regard to postal services that are non-reserved within the meaning of Directive 97/67 that it must be examined whether, in concluding a cooperation agreement like the one in issue in the main proceedings, Community rules on public procurement must be observed.
43. In the first place, it must be examined whether an agreement like the one in issue in the main proceedings came within the scope of the directive that is relevant to the public procurement of postal services in the period relevant to the case before the Audiencia Nacional, namely Directive 92/50.
44. Directive 92/50 requires that the award of the public service contracts to which it applies must comply with certain requirements concerning procedure and advertising.
45. According to the actual wording of Article 1(a) of Directive 92/50, a public service contract presupposes the existence of a contract for pecuniary interest concluded in writing between a service provider and a contracting authority within the meaning of Article 1(b).
46. As the Advocate General observed in Point 63 of his Opinion, the Ministerio is indeed a contracting authority and Correos a service provider within the meaning of the provisions referred to in the preceding paragraph. In addition, it is not contested that the Cooperation Agreement was concluded in writing and for pecuniary interest. | C-119/06
Italy | 34-35 | S2-1.a
S2-1.b.1 | 34 À titre liminaire, se pose la question de savoir si cet accord-cadre présente les caractéristiques d’un marché public au sens de l’article 1er, sous a), de la directive 92/50, à savoir être un contrat à titre onéreux, conclu par écrit entre un prestataire de services et un pouvoir adjudicateur.
35 Le caractère écrit de l’accord-cadre de 2004 n’est pas contesté, non plus que le fait que la Région de Toscane et les agences constituent des pouvoirs adjudicateurs. | C-119/06
Italy | 34-35 | S2-1.a | 46 Le gouvernement italien conteste enfin que cet accord-cadre ait été conclu à titre onéreux, au motif que les opérations de transport sanitaire en question sont effectuées par des associations bénévoles qui ne perçoivent que les remboursements de leurs frais.
47 Cet argument ne peut non plus être retenu. Il convient de relever que le caractère onéreux d’un contrat se réfère à la contre-prestation à laquelle procède l’autorité publique concernée en raison de l’exécution des prestations de services qui font l’objet du contrat et dont cette autorité aura le bénéfice (voir en ce sens, concernant la directive 93/37, arrêt du 12 juillet 2001, Ordine degli Architetti e.a., C-399/98, Rec. p. I-5409, point 77).
48 Dans le cas d’espèce, s’il est vrai que le travail des personnes qui effectuent les transports sanitaires en question n’est pas rémunéré, il ressort néanmoins des éléments soumis à la Cour que les paiements prévus par les autorités publiques concernées dépassent le simple remboursement des frais encourus pour fournir les services de transport sanitaire en cause. Ces montants sont établis au préalable et de manière forfaitaire, sur la base de tableaux annexés à l’accord-cadre de 2004. Le système décrit dans ces tableaux prévoit le paiement d’une somme fixe pour la mise à disposition (dite «stand-by») d’un véhicule destiné aux interventions, de sommes calculées en fonction des temps d’arrêt marqués au cours des activités de transport, d’une somme fixe pour les transports ne dépassant pas 25 km et de montants additionnels par kilomètre supplémentaire.
49 Le gouvernement italien a confirmé lors de l’audience que cette méthode de paiement et les sommes prévues à l’annexe de l’accord-cadre de 2004 permettent aux autorités nationales de subventionner les associations qui effectuent les prestations de services de transport sanitaire en question.
50 Dans les circonstances précises de l’espèce, la méthode de paiement prévue par l’accord-cadre de 2004 dépasse donc le simple remboursement des frais encourus. Dans cette mesure, il convient de considérer que cet accord-cadre prévoit une contrepartie des services de transport sanitaire qu’il vise.
51 Par conséquent, l’accord-cadre de 2004 doit être considéré comme ayant été conclu à titre onéreux au sens de l’article 1er, sous a), de la directive 92/50.
52 Il découle de ce qui précède que ledit accord-cadre constitue un marché public de services au sens de cette même disposition. | C-412/04
Italy | 89-93 | W2-1.a.p1 | 89. It must be observed, in the first place, that the only permitted exceptions to the application of Directives 92/50 and 93/38 are those which are exhaustively and expressly mentioned therein (see, by way of analogy, Case C-107/98 Teckal [1999] I8121, paragraph 43, and Case C-340/04 Carbotermo and Consorzio Alisei [2006] ECR I-4137, paragraph 45).
90. As the Advocate General has noted, in point 101 of his Opinion, supervision and the inspection of works are included in Category No 12 of both Annex I A to Directive 92/50 and Annex XVI A to Directive 93/38.
91. It is clear, first, from Article 8 of Directive 92/50 that contracts which have as their object services listed in Annex I A are to be awarded in particular in accordance with the provisions of Title III of that directive which concerns the choice of award procedures and, second, from Article 15 of Directive 93/38 that supply and works contracts and contracts which have as their object services listed in Annex XVI A are to be awarded in accordance with, inter alia, the provisions of Title IV of Directive 93/38, relating to award procedures.
92. Therefore, in so far as contracts for the supervision of works must be awarded in accordance with the rules laid down by Directives 92/50 and 93/38, the direct award to the project designer, as resulting from Article 27(2) of Law No 109/1994, infringes those directives as regards contracts which, having regard to their value, fall within the scope of the directives.
93. Likewise, in so far as contracts for inspection works must be awarded in accordance with the rules laid down by Directives 92/50 and 93/38, the award to third parties in the circumstances set out in Article 28(4) of Law No 109/1994 and Article 188 of DPR No 554/1999 infringes those directives as far as concerns the contracts included in their scope. | C-340/04
Carbotermo | 32 | G2-1.a | 32. For there to be a contract within the meaning of Article 1(a) of Directive 93/36 , there must have been an agreement between two separate persons (Teckal , paragraph 49). | C-340/04
Carbotermo | 45 | G2-1.a-impl | 45. Moreover, as the Court stated in paragraph 43 of Teckal , the only permitted exceptions to the application of Directive 93/36 are those which are exhaustively and expressly mentioned therein. | C-264/03
France | 35-38 | S2-1.a.p1 | 35. The expression public service contracts' is defined in Article 1(a) of Directive 92/50. That provision states that such contracts are contracts for pecuniary interest concluded in writing between a service provider and a contracting authority.
36. In order to establish whether the agency agreement of delegated project contracting within the meaning of Law No 85704 falls within the scope of Directive 92/50, it is necessary to examine whether the criteria established in Article 1(a) of that directive are met. Since that provision makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, there is no need to inquire as to how French law categorises such agreements.
37. In the present case, it appears that the said criteria are met.
38. First of all, Article 5 of Law No 85704 provides that the relationship between, on the one hand, the contracting authority and, on the other, the delegated project contractor is to be defined by an agreement, concluded between them in writing. Furthermore, it is clear from the same provision that the delegated project contractor receives remuneration. Therefore, that agreement may be regarded as a contract for pecuniary interest, concluded in writing. | C-264/03
France | 52-58 | S2-1.a.p1 | 52. As for agency agreements of delegated project contracting the object of which is tasks involving a representation function, it is important to point out at the outset that the fact that a service is provided in the performance of such an agreement is not sufficient to exclude it from the scope of Directive 92/50. That statement is supported by the fact that, as the Commission points out by way of example, agency agreements between a contracting authority and its lawyer come within the scope of Articles 14 and 16 of Directive 92/50, under Article 9 thereof and point 21 of Annex IB thereto.
53. Under Article 3 of Law No 85704, the agent may be entrusted with various tasks involving the function of representing the contracting authority. Thus it is, particularly, as regards the signature of the project contracting agreement and the works contract, as well as where the agent pays the service providers and chosen contractors their remuneration.
54. As the Advocate General correctly observes in point 41 of his Opinion, although the agent may be authorised to sign the project contracting agreement and works contract on behalf of the contracting authority, he does not have sufficient autonomy in the execution of its acts to enable it to be considered the beneficiary of a transfer of official authority. In fact, according to Article 2 of Law No 85704, the contracting authority, which is primarily responsible for the project, performs in that role a task in the public interest from which it may not resile. Furthermore, the agent may act only after the contracting authority has given its approval. As regards the payment of remuneration to the service providers and contractors, it is financed by the contracting authority, with the result that the agent has no room for manoeuvre in that field either. The agent confines himself to advancing funds, which are reimbursed to him by the contracting authority.
55. In those circumstances, agency agreements of delegated project contracting the object of which is tasks involving a function of representing the contracting authority fall within Article 9 of, and Annex IB to, Directive 92/50.
56. The reasoning followed by the Court in paragraph 100 of the judgment in Ordine degli Architetti and Others , relating to the application of Directive 93/37, is not such as to undermine that conclusion. The Court observed, as regards compliance with that directive in cases concerning the execution of infrastructure works in circumstances such as were presented to it, that it was not necessary for the municipal authorities themselves to apply the awardofcontractprocedures laid down by that provision. That directive was still given full effect as long as the national legislation allowed the municipal authorities to require the developer holding the building permit to carry out the work contracted for in accordance with those procedures.
57. That assessment was made in the context of specific legislation in respect of town planning according to which the grant of a building permit entailed the payment, by its holder, of a contribution to the infrastructure costs engendered by its project. However, that developer could, by way of total or partial setoff against the amount due, undertake to execute the infrastructure works directly. On the latter hypothesis, the Court concluded that it was a public works contract within the meaning of Directive 93/37. Since the municipality had no power to choose who was to be made responsible for executing the infrastructure works, since, by operation of law, that person is the owner of the land to be developed and the holder of the building permit, it was possible to find that the award procedures could be applied, in place of the municipality, by the holder of the permit, the only appropriate person, according to the law, to execute the works, as an alternative to the payment to the municipality of a contribution to the infrastructure costs. That situation is different from the situation governed by Law No 85704, which leaves to the contracting authority the choice of the agent and does not lay down prior obligations for which the latter's remuneration would be consideration.
58. In the light of the preceding considerations, it must be held that an agency agreement, as defined by Law No 85704, is a public service contract within the meaning of Article 1(a) of Directive 92/50 and comes within the scope of the 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-84/03
Spain | 37 | G2-1.a.s1.p1&~
W2-1.a.p1 | 37. According to the definitions given in Article 1(a) of Directives 93/36 and 93/37, public supply or public works contracts are contracts for pecuniary interest concluded in writing between a supplier or a contractor and a contracting authority within the meaning of Article 1(b) of the directives, for the purchase of products or the performance of a certain type of works. | C-358/00-S
Buchhändler | 20-30 | S2-1.a
S2-na [C3-1.4]
S2-na [C3-17] | 20 First of all, it should be stated, as the referring court did, that a contract which has as its object the services referred to in paragraph 8 of this order may be covered by Directive 92/50.
21 Secondly, in paragraphs 39 and 40 of the judgment in Telaustria and Telefonadress, cited above, which concerned a concession contract for the production and publication of telephone directories, the Court stated first of all that the contract had as its specific object services covered by various categories of Annex XVI A to Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) and that it was therefore covered by that directive.
22 In order to determine whether such a contract is covered by the definition of contracts for pecuniary interest concluded in writing in Article 1(4) of Directive 93/38, the Court then retraced the history of the directives governing public service contracts, including Directive 92/50.
23 In particular, in paragraph 46 of the judgment in Telaustria and Telefonadress, the Court pointed out that, both in its proposal 91/C 23/01 of 13 December 1990 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 23, p. 1) and in its amended proposal 91/C 250/05 of 28 August 1991 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 250, p. 4), which resulted in the adoption of Directive 92/50 which covers public service contracts in general, the Commission had expressly proposed that public service concessions be included within the scope of that directive.
24 In paragraph 47 of the judgment in Telaustria and Telefonadress, the Court pointed out, first, that, since that inclusion was justified by the intention to ensure coherent award procedures, the Commission had stated, in the 10th recital in the preamble to the proposal of 13 December 1990, that public service concessions should be covered by this directive in the same way as Directive 71/305/EEC applies to public works concessions. Second, the Court explained that, although the reference to Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682) was withdrawn from the 10th recital in the preamble to the proposal of 28 August 1991, that proposal none the less expressly maintained the purpose of ensuring coherent award procedures in that recital.
25 However, as the Court pointed out in paragraph 48 of the judgment in Telaustria and Telefonadress, during the legislative process the Council eliminated all references to public service concessions, in particular because of the differences between the Member States as regards the delegation of the management of public services and modes of delegation, which could have created a situation of very great imbalance in the opening-up of the public concession contracts (see paragraph 6 of document No 4444/92 ADD 1 of 25 February 1992, entitled Statement of reasons of the Council and annexed to the common position of the same date).
26 Finally, in the light of those considerations, which it then compared to the evolution of the scope of the directives on public works contracts, the Court found, in paragraph 57 of the judgment in Telaustria and Telefonadress, that public service concession contracts do not come within the scope of Directive 93/38 and are therefore not included in the concept of contracts for pecuniary interest concluded in writing appearing in Article 1(4) of that directive.
27 The Court concluded therefrom, in the second indent of paragraph 58 of the judgment in Telaustria and Telefonadress, that, although it is covered by Directive 93/38, a contract such as the one at issue in that case, the consideration for which consists in the right of the successful tenderer to exploit for payment his own service, is excluded from the scope of that directive under Community law as it stands at present.
28 Although the judgment in Telaustria and Telefonadress was delivered in respect of a contract which had as its object services relating to one of the specific sectors governed by Directive 93/38, it can clearly be deduced from that judgment that public service concessions are excluded not only from the scope of Directive 93/38 but also from the scope of Directive 92/50 which is intended to apply to services in general.
29 Having regard both to the fact that there is no specific provision relating to public service concessions in Directive 92/50 and to the history of that directive's adoption, as it is related by the Court in paragraphs 46, 47 and 48 of the judgment in Telaustria and Telefonadress, it must be concluded that the Community legislature knowingly excluded such concessions from the scope of that directive. Therefore, the interpretation of the concept, appearing in Article 1(4) of Directive 93/38, of contracts for pecuniary interest concluded in writing which was adopted in that judgment applies equally to the identical concept appearing in Article 1 of Directive 92/50.
30 The answer to the referring court's question must therefore be that a concession contract for public publishing services is excluded, under Community law as it stands at present, from the scope of Directive 92/50 even though, by reason of its specific object, it is covered by Annex I A to that directive to which Article 8 thereof refers. | C-94/99
ARGE | 39-40 | G2-1.a.s1.p1 | 39 In view of the replies given to the first three questions and given the context in which the fourth question has been posed (see paragraph 21 above), there is no need to answer it.
40 It is also relevant to point out that the Court considered a similar question in its judgment in Case C-107/98 Teckal v Comune di Viano [1999] ECR I-8121, concerning Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1). It ruled that that directive 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 products, whether or not that entity is itself a contracting authority. | C-399/98
Ordine degli Architetti | 38-45 | W2-1.a.p1
ECT-234 [ex 177] | 38 The City of Milan and the FTS contend that the first question is unrelated to the subject-matter of the main proceedings.
39 They argue that, since the applicants in the main proceedings are either architects or professional bodies representing architects, the national court has confined admissibility of the main proceedings to issues arising from the award of contracts for the design of the Teatro alla Bicocca, to the exclusion of those for building works. Design work constitutes the provision of services. However, the first question concerns the interpretation of Directive 93/37 which covers public works contracts, not public service contracts, which are governed by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). 40 Moreover, the design work in question was, quite simply, provided free of charge to the City of Milan, which means that the cost of that work cannot be included in the cost of constructing the Teatro alla Bicocca, direct execution of which, by way of set-off against the infrastructure contribution, would damage the interests of architects.
41 It is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, for example, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main proceedings or to their purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted (see, in particular, PreussenElektra, cited above, paragraph 39).
42 In the present case, it is clear from the order for reference that the applicants in the main proceedings seek annulment of the contested resolutions because they permitted a public work - the Teatro alla Bicocca - to be executed directly, without recourse to a Community tendering procedure, thus damaging the applicants' interests. It is also clear from the order for reference that those actions have been declared admissible.
43 There is no doubt that, if a Community tendering procedure had to be organised for the construction of the Teatro alla Bicocca, it could also cover the related design work. The fact that such work is covered by the Directive is confirmed by the wording of Article 1(a), which defines public works contracts, for the purposes of the Directive, as contracts which have as their object either the execution, or both the execution and design, of works.
44 Consequently, the Court must reject the argument that the first question, in so far as it concerns the interpretation of the Directive, bears no relation to the subject-matter of the dispute in the main proceedings.
45 Accordingly, the fact that the design work on the Teatro alla Bicocca was provided free of charge does not cast any doubt on the relevance of the first question. | C-399/98
Ordine degli Architetti | 77-81 + 84-86 | W2-1.a.p1 | 77 It must be pointed out that the pecuniary nature of the contract relates to the consideration due from the public authority concerned in return for the execution of the works which are the object of the contract referred to in Article 1(a) of the Directive and which will be at the disposal of the public authority.
78 In a case such as that before the national court, the question whether - in circumstances where infrastructure works have been executed directly - the contract is of a pecuniary nature for the municipal authorities must be considered from a specific viewpoint, because of the peculiarities of Italian urban development legislation.
79 Thus, under Article 28(5)(2) of Law No 1150/42 and Article 12(b) of LRL No 60/77, as amended by Article 3 of LRL No 31/86, it is the owners of the land to be developed who bear the costs of primary infrastructure works as well as a proportion of the costs of the secondary infrastructure works needed for the project or of other works needed in order to link the area concerned to public utilities.
80 That being so, Article 11(1) of Law No 10/77 provides that the holder of building permission may undertake to carry out the infrastructure works directly... by way of total or partial set-off against the amount payable in respect of the infrastructure contribution, payment of which is linked to the grant of permission, pursuant to Article 3 of that Law.
81 The phrase by way of set-off used in Article 11(1) of Law No 10/77 suggests that, in consenting to the direct execution of infrastructure works, the municipal authorities waive recovery of the amount due in respect of the contribution provided for in Article 3 of that Law.
......
84 The national court states in the order for reference that, contrary to the arguments put forward by the defendants in the main proceedings, a holder of a building permit or an approved development plan who executes infrastructure works is not providing any service free of charge, since he is in fact settling a debt to the same value (but involving no cash adjustment) which arises towards the municipality - namely, the infrastructure contribution - and the fact that that obligation may be met in either of two forms - a cash payment or direct execution of the works - does not mean that the basis of the obligation can be differentiated according to the alternative that is chosen (or predetermined by the legislature).
85 That interpretation of the national legislation is consistent with the aim of the Directive, referred to in paragraph 52 of this judgment, and is therefore conducive to ensuring that the Directive has full effect.
86 Accordingly, the requirement that the contract be of a pecuniary nature must be held to be satisfied. | C-399/98
Ordine degli Architetti | 90-95 | W2-1.a.p1
W2-na [C3-1.8.1] | 90 It should be noted that Article 1(a) of the Directive does not require that, in order to be classed as a contractor, a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection.
91 Thus, Article 20 of the Directive states that [i]n the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties.
92 Along the same lines, the Court ruled that Directive 92/50 permits a service provider to establish that it fulfils the economic, financial and technical criteria for participation in a tendering procedure for the award of a public service contract by relying on the standing of other entities, regardless of the legal nature of the links which it has with them, provided that it is able to show that it actually has at its disposal the resources of those entities which are necessary for performance of the contract (see Case C-176/98 Holst Italia [1999] ECR I-8607).
93 According to the documents before the Court, in a situation such as that at issue in the main proceedings, the developer holding a building permit has an obligation by virtue of the commitments entered into under the development agreement with the municipality to give the latter sufficient guarantees that the completed works will be handed over to the municipality and that the operator selected to execute the works will subscribe to the agreements concluded with the municipal authorities. That is the position in the present case, in so far as MCS signed the agreements entered into by the City of Milan with Pirelli.
94 In those circumstances, neither the fact that the developer is unable to execute the work using his own resources nor the fact that the operator who will be entrusted to carry out the work is chosen by the developer holding the building permit rather than by the municipal authorities means that the abovementioned element is lacking.
95 Furthermore, the fact that the infrastructure works are carried out by the holder of the building permit in his own name, before being handed over to the municipality, is not sufficient to divest the latter of its status as contracting authority in relation to the execution of such works.
96 Consequently, the contractor element must also be regarded as present. | C-337/98
France | 43-46+56 | U2-1.4.1.s1.p1-impl
U2-45.1
ECT-226 | 43 However, it must be observed that, by two separate resolutions of 22 September 1995, the contracting entity, first, withdrew the resolution of 30 March 1993 awarding the contract to Matra and, second, asked Semtcar to continue negotiations with that company.
44 Accordingly, it must be considered whether the negotiations opened after 22 September 1995 were substantially different in character from those already conducted and were, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, so that the application of the provisions of Directive 93/38 might be justified.
45 In that regard, it must be observed, as a preliminary point, that, according to settled case-law, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case (see, inter alia, Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36).
46 It follows that, in the present case, it is for the Commission to adduce all such evidence as is necessary to prove that fresh negotiations were commenced after 22 September 1995 and were such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, which would justify the application of the provisions of Directive 93/98.
.....
56 Accordingly, it must be held that the Commission has not adduced evidence capable of proving that fresh negotiations demonstrating the intention of the parties to renegotiate the essential terms of the contract were opened following the withdrawal of the resolution of 30 March 1993 and, therefore, after the expiry of the period prescribed for the transposition of Directive 93/38. | C-324/98
Telaustria | 41-57 | U2-1.4
U2-na [U3-1.3.b]
U2-na [U3-18] | 41 In answering the second issue raised by the national court, it must be noted at the outset that the court links its questions to Proposal 91/C 23/01 of 13 December 1990 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 23, p. 1; the proposal of 13 December 1990) and adopts the definition of public service concession proposed in that document by the Commission.
42 In that regard, it is necessary to state that the Court is in a position to deal with the second issue raised without its being necessary for it to adopt the definition of public service concession referred to in Article 1(h) of the proposal of 13 December 1990.
43 It should be noted at the outset that Article 1(4) of Directive 93/38 refers to contracts for pecuniary interest concluded in writing and, without making express reference to public service concessions, provides only indications about the contracting parties and about the object of the contract, defining them in particular in the light of the method of remunerating the service provider and without drawing any distinction between contracts in which the consideration is fixed and those in which the consideration consists in a right of exploitation.
44 Telaustria proposes that Directive 93/38 be interpreted as meaning that a contract under which the consideration consists in a right of exploitation also comes within its scope. In its submission, in order for Directive 93/38 to apply to such a contract, it is sufficient, in accordance with Article 1(4) of that directive, for the contract to be for pecuniary interest and concluded in writing. It would therefore be unjustified to infer that such contracts are excluded from the scope of Directive 93/38 simply because that directive is silent about the method by which the service provider is to be remunerated. Telaustria adds that the fact that the Commission did not propose to include provisions about that type of contract within the scope of the Directive indicates that it considered that the Directive covers any contract for the provision of services, regardless of the arrangements for remunerating the provider.
45 Since Telekom Austria, the Member States which have submitted observations and the Commission dispute that interpretation, it is necessary to assess its merits in the light of the history of the relevant directives, in particular in the field of public service contracts.
46 In that regard, it should be recalled that both in its proposal of 13 December 1990 and in its amended proposal 91/C 250/05 of 28 August 1991 for a Council Directive relating to the coordination of procedures on the award of public service contracts (OJ 1991 C 250, p. 4; the proposal of 28 August 1991), which resulted in the adoption of Directive 92/50 which covers public service contracts in general, the Commission had expressly proposed that public service concessions be included within the scope of that directive.
47 Since that inclusion was justified by the intention to ensure coherent award procedures, the Commission stated, in the 10th recital in the preamble to the proposal of 13 December 1990, that public service concessions should be covered by this directive in the same way as Directive 71/305/EEC applies to public works concessions. Although the reference to Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682) was withdrawn from the 10th recital in the preamble to the proposal of 28 August 1991, that proposal none the less expressly maintained the purpose of ensuring coherent award procedures in that recital.
48 However, during the legislative process, the Council eliminated all references to public service concessions, in particular because of the differences between the Member States as regards the delegation of the management of public services and modes of delegation, which could create a situation of very great imbalance in the opening-up of the public concession contracts (see point 6 of document No 4444/92 ADD 1 of 25 February 1992, entitled Statement of reasons of the Council and annexed to the common position of the same date).
49 The outcome was the same for the Commission's position expressed in its amended proposal 89/C 264/02 of 18 July 1989 for a Council Directive on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1989 C 264, p. 22), which resulted in the adoption of Directive 90/531, which was the first directive in those sectors on the award of public contracts and preceded Directive 93/38, in which the Commission had also proposed for those sectors certain provisions designed to govern public service concessions.
50 None the less, as is clear from point 10 of document No 5250/90 ADD 1 of 22 March 1990, entitled Statement of reasons of the Council and annexed to the Council's common position of the same date on the amended proposal for a Council Directive on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, the Council did not act on that Commission proposal to include in Directive 90/531 rules on public service concessions, on the ground that such concessions existed in only one Member State and that it was inappropriate to proceed with their regulation in the absence of a detailed study of the various forms of public service concessions granted in the Member States in those sectors.
51 In view of those circumstances, the Commission did not propose the inclusion of public service concessions in its proposal 91/C 337/01 of 27 September 1991 for a Council Directive amending Directive 90/531 (OJ 1991 C 337, p. 1), which subsequently resulted in the adoption of Directive 93/38.
52 That finding is also supported by the way in which the scope of the directives on public works contracts evolved.
53 Article 3(1) of Directive 71/305, which was the first directive on the subject, expressly excluded concession contracts from its scope.
54 None the less, Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305 (OJ 1989 L 210, p. 1) inserted in Directive 71/305 Article 1b which expressly addressed public works concessions by making the advertising rules laid down in Articles 12(3), (6), (7), (9) to (13) and 15a thereof applicable to them.
55 Subsequently, 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), which replaced Directive 71/305 as amended, expressly refers to public works concessions among the contracts within its scope.
56 On the other hand, Directive 93/38, adopted on the same day as Directive 93/37, provided for no rule on public service concessions. It follows that the Community legislature decided not to include such concessions within the scope of Directive 93/38. If it had wished to, it would have done so expressly, as it did when adopting Directive 93/37.
57 Since public service concession contracts do not therefore come within the scope of Directive 93/38, it must be concluded that, contrary to the interpretation proposed by Telaustria, such contracts are not included in the concept of contracts for pecuniary interest concluded in writing appearing in Article 1(4) of that directive. | C108/98
RISAN | 12-17 | S2-1.a
S2-na [C3-1.4]
S2-na [C3-17]
ECT-234 [ex 177] | 12 The Municipality of Ischia, Italia Lavoro, Ischia Ambiente, the Italian Government and the Commission have submitted observations on the question whether the procedure for choosing the entity entrusted with running the waste collection service may be covered by the provisions of Directive 92/50.
13 That directive applies to the award of public service contracts which are defined, in Article 1(a), as contracts for pecuniary interest concluded in writing between a service provider and a contracting authority.
14 The national court has, however, expressly excluded the relevance of Directive 92/50, on the ground that only a public service concession was involved, and not a public service contract.
15 The definition of public service concession within the meaning of the Community rules on public contracts and the question whether such a concession is excluded from the scope of Directive 92/50 are matters governed by Community law. Such questions may therefore be the subject of a reference for a preliminary ruling, under Article 177 of the Treaty, if a national court considers that a decision on one of those questions is necessary in order to give judgment.
16 However, even supposing, contrary to the position taken here by the referring court, that Directive 92/50 is relevant in determining the case before it, it must be observed that the reference and the questions raised relate only to the provisions of the Treaty and that the referring court has not provided the factual information which would be necessary for the Court to rule on the interpretation of that directive.
17 In those circumstances, the Court must confine its answer to the provisions of the Treaty expressly mentioned in the questions referred for a preliminary ruling. | C-107/98
Teckal | 46-47 | G2-1.a.s1.p1
ECT-234 | 46 In its capacity as a local authority, the Municipality of Viano is a contracting authority within the meaning of Article 1(b) of Directive 93/36. It is therefore a matter for the national court to ascertain whether the relationship between the Municipality of Viano and AGAC also meets the other conditions which Directive 93/36 lays down for a public supply contract.
47 That will, in accordance with Article 1(a) of Directive 93/36, be the case if the contract in question is a contract for pecuniary interest, concluded in writing, involving, inter alia, the purchase of products. | | C-44/96 Mannesmann | 20-35 | W2-1.a.p1
W2-1.b.2 | 20 Under the second subparagraph of Article 1(b) of Directive 93/37, a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law.
21 It is clear from that provision that the three conditions set out therein are cumulative.
22 As regards the first condition, it should be noted, first, that the OS was established in order to produce, on an exclusive basis, official administrative documents, some of which require secrecy or security measures, such as passports, driving licences and identity cards, whilst others are intended for the dissemination of legislative, regulatory and administrative documents of the State.
23 Furthermore, the prices for the printed matter which the OS is required to produce are fixed by a body consisting mainly of members appointed by the Federal Chancellery or various ministries and a State control service is responsible for monitoring the printed matter which is subject to security measures.
24 According to the legislation applicable to it, therefore, that entity was established for the purpose of meeting needs in the general interest, not having an industrial or commercial character. The documents which the OS must produce are closely linked to public order and the institutional operation of the State and require guaranteed supply and production conditions which ensure that standards of confidentiality and security are observed.
25 Furthermore, it is apparent from Paragraphs 1(1) and 2(1) of the StDrG that the OS was established for the specific purpose of meeting those needs in the general interest. In that respect, it is immaterial that such an entity is free to carry out other activities in addition to that task, such as the production of other printed matter and the publication and distribution of books. The fact, raised by the Austrian Government in its written observations, that meeting needs in the general interest constitutes only a relatively small proportion of the activities actually pursued by the OS is also irrelevant, provided that it continues to attend to the needs which it is specifically required to meet.
26 The condition, laid down in the first indent of the second subparagraph of Article 1(b) of the directive, that the body must have been established for the `specific' purpose of meeting needs in the general interest, not having an industrial or commercial character, does not mean that it should be entrusted only with meeting such needs.
27 As regards the second condition laid down in the second subparagraph of Article 1(b) of Directive 93/37, it should be noted that, according to the national Law, the OS has legal personality.
28 As regards the third condition, it should be noted that the Director-General of the OS is appointed by a body consisting mainly of members appointed by the Federal Chancellery or various ministries. Furthermore, it is subject to scrutiny by the Court of Auditors and a State control service is responsible for monitoring the printed matter which is subject to security measures. Finally, according to the statements made at the hearing by SRG, the majority of the shares in the OS are still held by the Austrian State.
29 It follows that an entity such as the OS must be classified as a body governed by public law within the meaning of the second subparagraph of Article 1(b) of Directive 93/37 and must thus be regarded as a contracting authority within the meaning of the first subparagraph of that provision.
30 The Austrian and Netherlands Governments object that it is not possible to disregard the fact that the overall activity of an entity such as the OS is dominated by those activities pursued in order to meet needs having an industrial or commercial character.
31 In that respect, it should be recalled that, as stated at paragraph 26 above, the wording of the second subparagraph of Article 1(b) of Directive 93/37 does not exclude the possibility that a contracting authority may pursue other activities in addition to its specific task of meeting needs in the general interest, not having an industrial or commercial character.
32 As regards such activities, it should be noted first that Article 1(a) of the directive makes no distinction between public works 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.
33 The fact that no such distinction is made is explained by the aim of Directive 93/37 to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities.
34 Finally, to interpret the first indent of the second subparagraph of Article 1(b) of Directive 93/37 in such a way that its application would vary according to the relative proportion of its activities pursued for the purpose of meeting needs not having an industrial or commercial character would be contrary to the principle of legal certainty which requires a Community rule to be clear and its application foreseeable by all those concerned.
35 The answer to the first and sixth questions referred by the national court should therefore be that an entity such as the OS must be regarded as a body governed by public law within the meaning of the second subparagraph of Article 1(b) of Directive 93/37, and thus as a contracting authority within the meaning of the first subparagraph of that provision, so that works contracts, of whatever nature, entered into by that entity are to be considered to be public works contracts within the meaning of Article 1(a) of that directive. | C-44/96
Mannesmann | 42-46 | W2-1.a.p1
W2-1.b.1 | 42 By its third question, the national court is seeking to ascertain whether a project which must be classified as a public works contract within the meaning of Article 1(a) of Directive 93/37 continues to be subject to the provisions of that directive when, before completion of the work, the contracting authority transfers its rights and obligations in the context of a call for tenders to an undertaking which is not itself a contracting authority within the meaning of Article 1(b) of that directive.
43 In that respect, it is clear from Article 1(a) of Directive 93/37 that a contract which satisfies the conditions set out in that provision cannot cease to be a public works contract when the rights and obligations of the contracting authority are transferred to an undertaking which is not a contracting authority. The aim of Directive 93/37, which lies in the effective realisation of freedom of establishment and freedom to provide services in the field of public works contracts, would be undermined if the application of the rules in the directive could be excluded on the sole ground that the rights and obligations of a contracting authority in the context of a call for tenders are transferred to an undertaking which does not satisfy the conditions set out in Article 1(b) of Directive 93/37.
44 The contrary would be true only if it were to be established that, from the outset, the whole of the project at issue fell within the objects of the undertaking concerned and the works contracts relating to that project were entered into by the contracting authority on behalf of that undertaking.
45 It is for the national court to ascertain whether that is the case here.
46 The answer to the third question referred by the national court must therefore be that a public works contract is not subject to the provisions of Directive 93/37 when it relates to a project which, from the outset, falls entirely within the objects of an undertaking which is not a contracting authority and when the works contracts relating to that project were entered into by a contracting authority on behalf of that undertaking. | T-203/96
Embassy Limousines | 39-42 | S2-1.a.p1
GT-3
Q3A7-1.23=Q3-56
M32-126] | 39 It is important to stress, however, that, in the words of Article 1 of Directive 92/50, applicable pursuant to Article 126 of Commission Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain provisions of the Financial Regulation of 21 December 1977 (OJ 1993 L 315, p. 1), inasmuch as the value of the contract at issue exceeds the threshold laid down in Article 7(1) of that directive, `public service contracts shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority'.
40 In this case, it is not disputed that the value of the contract exceeds that threshold. The existence of contractual relations between the parties therefore presupposes that they have entered into a written contract. In that regard, it is appropriate to refer also to Article 3 of the General Terms and Conditions (applicable, in this case, pursuant to the first paragraph of Article 6 of the specifications). That article provides: `3.1 The contracts shall be made binding by the agreement in writing of the parties thereto. 3.2 A contract shall be concluded by notification to the tenderer that his tender has been accepted. Such notification shall be in the form of a purchase order or letter. 3.3 If the acceptance does not conform in all respects with the tender or if the Commission's decision is advised after the expiry of the period during which the tender was valid, the conclusion of the contract shall be subject to the tenderer's agreement in writing. 3.4 The contract may also take the form of a contract signed by both parties.'
41 It follows that the contract could not be finally awarded without the framework contract being signed by the two parties. However, since the framework contract has never been signed, it must be concluded that there is no valid contract in this case.
42 Moreover, the favourable opinion of the ACPC, as an opinion of an advisory body, cannot change that conclusion, notwithstanding the importance which is generally accorded to that opinion, in practice, in connection with an invitation to tender. | T-175/94
International | 43 | Q3-50.s1-impl | 43 The Court observes first that according to settled case-law contracts financed by the EDF remain national contracts which only the ACP States have the responsibility of preparing, negotiating and concluding. For their part, undertakings which submit tenders for or are awarded the contracts in question remain outside the exclusive dealings conducted on this matter between the Commission and the ACP States (STS v Commission, cited above, paragraph 18, Case C-257/90 Italsolar v Commission [1993] ECR I-9, paragraph 22, Case T-451/93 San Marco v Commission [1994] ECR II-1061, paragraph 42). | C-71/92
Spain | 10 | G1A2-2.1.s1.p1+3=G1-1.a.s1.p1-impl | 10 It is apparent from the ninth recital in the preamble to Directive 77/62 that: "... provision must be made for exceptional cases where measures concerning the coordination of procedures may not necessarily be applied, but such cases must be expressly limited". It follows that the only permitted exceptions to the application of Directive 77/62 are those which are exhaustively and expressly mentioned therein. |
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