| | 32004L0018: c3-1.4Service concession    
| 32004L0018 - Classic (3rd generation) | Article 1.4 | | 4. "Service concession" is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment. | | 32004L0017 - Utilities (3rd generation) | Article 1.3.b | | (b) A "service concession" is a contract of the same type as a service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in that right together with payment. |
| Case | Pte | Ref | Text | C-324/07
Coditel Brabant | 24-25 | S2-na [C3-1.4]
S2-na [C3-17]
ECT-EquTran | 24 It is apparent from the referral decision that, by becoming a member of Brutélé, the Municipality of Uccle entrusted it with the management of its cable television network. It is also apparent that Brutélé’s remuneration comes not from the municipality but from payments made by the users of that network. That method of remuneration is characteristic of a public service concession (Case C- 458/03 Parking Brixen [2005] ECR I-8585, paragraph 40).
25 Public service concession contracts do not fall within the scope of 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), which was applicable at the material time. Notwithstanding the fact that such contracts fall outside the scope of that directive, the authorities concluding them are bound to comply with the fundamental rules of the EC Treaty, the principles of equal treatment and nondiscrimination on grounds of nationality, and the concomitant obligation of transparency (see, to that effect, Telaustria and Telefonadress, paragraphs 60 to 62, and Case C-231/03 Coname [2005] ECR I-7287, paragraphs 16 to 19). Without necessarily implying an obligation to launch an invitation to tender, that obligation of transparency requires the concession-granting authority to ensure, for the benefit of any potential concessionaire, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of the procurement procedures to be reviewed (see, to that effect, Telaustria and Telefonadress, paragraph 62, and Coname, paragraph 21). | C-410/04
ANAV | 16-17 | S2-na [C3-1.4]
S2-na [C3-17] | 16. It is apparent from the documents relating to the case in the main proceedings that the public transport service in the Municipality of Bari is remunerated, at least in part, through the purchase of tickets by those using it. That method of remuneration characterises a public service concession (Case C458/03 Parking Brixen [2005] ECR I-0000, paragraph 40).
17. It is common ground that public service concessions are excluded from the scope of 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) (Parking Brixen , paragraph 42). That directive was replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), Article 17 of which expressly provides that it is inapplicable to service concessions. | C-260/04
Italy | 20-22 | S2-na [C3-1.4]
S2-na [C3-17]
| 20. As the Commission rightly observed, the Italian Government has not denied, either during the pre-litigation procedure or in the course of these proceedings, that the award of licences for horse-race betting operations in Italy constitutes a public service concession. That classification was accepted by the Court in Placanica and Others (C338/04, C359/04 and C360/04 [2007] ECR I-0000), in which it interprets Articles 43 and 49 EC in relation to the same national legislation.
21. It is common ground that public service concessions are excluded from the scope of Directive 92/50 (see Case C-458/03 Parking Brixen [2005] ECR I-8585, paragraph 42).
22. The Court has held that, notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular (see, to that effect, Telaustria and Telefonadress , cited above, paragraph 60; Case C231/03 Coname [2005] ECR I-7287, paragraph 16; and Parking Brixen , cited above, paragraph 46). | C458/03
Parking Brixen | 37-43 | S2-na [C3-1.4]
S2-na [C3-17] | 37. As regards the car park on plot 491/6, it is clear from the order for reference, as noted in paragraphs 24 to 26 of this judgment, that the car park had been managed directly by the Gemeinde Brixen for more than 10 years when its management was entrusted, for a term of nine years, to Stadtwerke Brixen AG by a contract which it concluded with the municipality on 19 December 2002. In consideration for managing the car park, parking charges are collected from its users by Stadtwerke Brixen AG, which pays the Gemeinde Brixen an annual fee. In addition, Stadtwerke Brixen AG accepts that the weekly market will continue to be held on the area in question, provides the free bicycle hiring service and takes responsibility for the maintenance of that area.
38. In view of that information, it must be understood that, by its first question, the referring court is asking, in essence, whether the award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by amounts paid by third parties for the use of the car park, is a public service contract within the meaning of Directive 92/50, or a public service concession to which that directive does not apply.
39. As stated in the eighth recital in its preamble, Directive 92/50 applies to public service contracts', which are defined in Article 1(a) thereof as contracts for pecuniary interest concluded in writing between a service provider and a contracting authority'. It follows from that definition that a public service contract within the meaning of that directive involves consideration which is paid directly by the contracting authority to the service provider.
40. In the situation referred to in the first question, on the other hand, the service provider's remuneration comes not from the public authority concerned, but from sums paid by third parties for the use of the car park in question. That method of remuneration means that the provider takes the risk of operating the services in question and is thus characteristic of a public service concession. Therefore, in a situation such as that in the main proceedings, it is not a case of a public service contract, but of a public service concession.
41. In that regard, it is relevant to point out that that interpretation is confirmed by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), even though it was not applicable at the date of the facts in the main proceedings. Under Article 1(4) of that directive, service concession is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment'.
42. It is common ground that public service concessions are excluded from the scope of Directive 92/50 (see order in Case C-358/00 BuchhändlerVereinigung [2002] ECR I-4685, paragraph 28).
43. The reply therefore to the first question must be that the award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by sums paid by third parties for the use of that car park, is a public service concession to which Directive 92/50 does not apply. | C-234/03
Contse | 22-23 | S2-na [C3-1.4]
S2-na [C3-17]
ECT-43
ECT-49
ECT-234
ECT-EquTran | 22. As a preliminary point, it should be observed that the case in the main proceedings, contrary to the Spanish Government's submissions, appears to concern a public service contract and not a management contract for a service categorised as a concession. As Insalud stated at the hearing, the Spanish administration remains liable for all harm suffered on account of a failure of the service. That factor, which implies that there is no transfer of risks connected to the provision of the service concerned, and the fact that the service is paid for by the Spanish health administration, support that conclusion. It is, however, for the national court to determine whether in fact that is the case.
23. In any event, since the questions from the national court are based on the fundamental rules laid down by the Treaty, the following considerations will be helpful to it even if this contract is a public service concession not covered by Directive 92/50. It is in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty that the consequences in Community law of the award of such concessions must be examined (see, in particular, Case C-231/03 Coname [2005] ECR I-0000, paragraph 16). | C-231/03
Coname | 9 | S2-na [C3-1.4]
U2-na [U3-1.3.b]
S2-na [C3-17]
U2-na [U3-18] | 9. It must be observed at the outset that the case in the main proceedings appears to relate, as follows from the reply given by the referring court to a request for clarification made by the Court under Article 104(5) of its Rules of Procedure, to a service described as a concession, which does not fall within the scope of either 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) or 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) (see, to that effect, Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 56, and the order in Case C358/00 Buchhändler-Vereinigung [2002] ECR I-4685, paragraph 28). | 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-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. |
| Case | Pte | Ref | Text | N-991109
More Group Danmark | 1-2+4 | S2-na [C3-1.4]
S2-na [C3-17] | 1. Efter en samlet vurdering af det udbudte projekt lægger Klagenævnet til grund for afgørelsen, at indklagede så vidt muligt omkostningsfrit, skulle blive i stand til at yde offentligheden den service, der består i tilrådighedsstillelse af velindrettede og afskærmede busstoppesteder, med passende information, og i det hele reklamefinansieret.
2. Klagenævnet lægger endvidere til grund, at indklagede uden på nogen måde at løbe en økonomisk risiko for en længere periode har overladt det til medkontrahenten at præstere en ydelse, indklagede ud fra almene hensyn har besluttet at levere offentligheden, forstået i denne sammenhæng som Århus Sporvejes kunder. Klagenævnet finder herefter, at der foreligger en koncessionsaftale.
.....
4. Hverken direktiv 92/50 om samordning af fremgangsmåderne ved indgåelse af offentlige tjenesteydelsesaftaler (Tjenesteydelsesdirektivet) eller direktiv 93/36 om samordning af fremgangsmåderne ved offentlige indkøb (Indkøbsdirektivet) omfatter efter deres ordlyd koncessionsaftaler. [Q: Forsyningsvirksomhed - Århus kommune] |
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