| | 32004L0018: c3-1.8.1Contractor, supplier, service provider    
| 32004L0018 - Classic (3rd generation) | Article 1.8.1 | | 8. The terms "contractor", "supplier" and "service provider" mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services. | | 32004L0017 - Utilities (3rd generation) | Article 1.7.1 | | 7. The terms "contractor", "supplier" or "service provider" mean either a natural or a legal person, or a contracting entity within the meaning of Article 2(2)(a) or (b), or a group of such persons and/or entities which offers on the market, respectively, the execution of works and/or a work, products or services. | | 31992L0050 - Services (2nd generation) | Article 1.c.s1 | | (c) service provider shall mean any natural or legal person, including a public body, which offers services. | | 31993L0038 - Utilities (2nd generation) | Article 1.6.p2 | | service providers may be either natural or legal persons, including contracting entities within the meaning of Article 2; |
| 32002R2342 - Implementation of Community (4th generation) - Commission Q4 | Article 116.6-7 | 6. The terms "supplier", "contractor" and "service provider" refer to three categories of economic operator, natural or legal persons, who supply products, execute works and provide services respectively. Economic operators who have submitted a tender are referred to as "tenderers". Those who have asked to be allowed to take part in a restricted or negotiated procedure are referred to as "candidates".
7. Departments of the Community institutions shall be considered to be contracting authorities. | | 32005R1261 - First amendment of implementation of Community (4th generation) - Commission Q4A1 | Article 1.3.f=M4-116.6-7 | (f) paragraphs 6 and 7 are replaced by the following:
"6. The terms "contractor", "supplier" and "service provider" refer to any natural or legal person or public entity or consortium of such persons and/or bodies which offers to execute works, supply products and provide services respectively. The terms "economic operator" covers "contractors", "suppliers" and "service providers". Economic operators who have submitted a tender are referred to as "tenderers". Those who have asked to be allowed to take part in a restricted procedure, including a competitive dialogue, or in a negotiated procedure are referred to as "candidates".
Consortia of economic operators shall be authorised to submit tenders or to be candidates. Contracting authorities may not demand that consortia must have a given legal form in order to be allowed to submit a tender or request to take part, but the consortium selected may be required to adopt a given legal form after it has been awarded the contract if this change is necessary for proper performance of the contract.
7. Departments of the Community institutions shall be considered to be contracting authorities, save where they conclude between themselves administrative arrangements for the provision of services, the supply of products or the execution of works."; |
| Case | Pte | Ref | Text | C-323/07-S
Termoraggi | 18-23 | S2-1.c.s1-impl
ECT-234-impl | 18 La directive 93/36 s’applique, en principe, aux marchés conclus entre, d’une part, une collectivité territoriale et, d’autre part, une personne juridiquement distincte de cette dernière. Cependant, elle ne s’applique pas dans l’hypothèse où, à la fois, la collectivité territoriale exerce sur la personne en cause un contrôle analogue à celui qu’elle exerce sur ses propres services et où cette personne réalise l’essentiel de son activité avec la ou les collectivités qui la détiennent (voir arrêt Teckal, précité, point 50).
19 Des considérations analogues s’appliquent en ce qui concerne la directive 92/50 (voir arrêt du 11 janvier 2005, Stadt Halle et RPL Lochau, C-26/03, Rec. p. I-1, points 48, 49 et 52). 20 Le dossier soumis à la Cour contient certaines indications desquelles il pourrait être déduit qu’AGAM est sous le contrôle du Comune di Monza et réalise l’essentiel de son activité avec celui-ci.
21 Il appartient à la juridiction de renvoi de vérifier si tel est effectivement le cas dans l’affaire au principal.
22 Dans l’affirmative, il conviendrait de conclure que ni la directive 92/50 ni la directive 93/36 ne sont applicables au marché en cause au principal.
23 Dans la négative, il conviendrait d’examiner si les autres conditions d’applicabilité de ces directives sont réunies. S’agissant de la directive 92/50, il conviendrait d’examiner si les conditions posées à son article 6 sont satisfaites. Une question analogue ne se poserait pas à l’égard de la directive 93/36, celle-ci ne contenant pas de disposition comparable à l’article 6 de la directive 92/50 (voir arrêt Teckal, précité, point 44). | C-220/06
Asociacion Profesional de Empresas | 49-63 | S2-1.c.s1-impl | 49. Assuming that that threshold is reached, this raises the question whether the Cooperation Agreement is in fact a contract within the meaning of Article 1(a) of Directive 92/50. The Spanish Government submits that the agreement is not contractual but instrumental, given that Correos is unable to refuse to enter into such an agreement, but is under an obligation to accept.
50. In this respect, it must be noted that the definition of a public service contract is a matter of Community law, with the result that the classification of the Cooperation Agreement under Spanish law is irrelevant for the purposes of determining whether it falls within the scope of Directive 92/50 (see, to that effect, Case C-264/03 Commission v France [2005] ECR I-8831, paragraph 36, and Case C-382/05 Commission v Italie [2007] ECR I-0000, paragraph 30).
51. Admittedly, in paragraph 54 of its judgment in Case C-295/05 Asemfo [2007] ECR I-0000, the Court held that the requirement for the application of the directives governing the award of public service contracts relating to the existence of a contract was not met where the State company in issue in the case that gave rise to the judgment had no choice as to the acceptance of a demand made by the competent authorities in question or as to the tariff for its services, a matter which was for the referring court to establish.
52. However, that reasoning must be read in its specific context. It follows on from the finding that, under Spanish legislation, that State company is an instrument and a technical service of the General State Administration and of the administration of each of the Autonomous Communities concerned, the Court having already held, in a context different from that in the case that gave rise to the judgment in Asemfo , that being an instrument and technical service of the Spanish Administration, the company in issue is required to implement only work entrusted to it by the General Administration of that State, the Autonomous Communities or the public bodies subject to them (Asemfo , paragraphs 49 and 53).
53. Correos, as the provider of the universal postal service, carries out an entirely different task, which means in particular that its customers consist of any person wishing to use the universal postal service. The mere fact that that company has no choice as to the acceptance of a demand made by the Ministerio or as to the tariff for its services cannot automatically entail that no contract was concluded between the two entities.
54. In fact, such a situation is not necessarily different from that which arises where a private customer wishes to use services provided by Correos coming within the scope of the universal postal service, since it is in the very nature of the task of a provider of that service that, in such a situation, he is also required to provide the services requested and must do so, if necessary, for a fixed tariff or, in any event, for a price that is transparent and non-discriminatory. There is no question that such a relationship must be called contractual. It is only if the agreement between Correos and the Ministerio were in actual fact a unilateral administrative measure solely creating obligations for Correos ¡- and as such a measure departing significantly from the normal conditions of a commercial offer made by that company, a matter which is for the Audiencia Nacional to establish - that it would have to be held that there is no contract and that, consequently, Directive 92/50 could not apply.
55. In the course of that examination, the Audiencia Nacional will have to consider, in particular, whether Correos is able to negotiate with the Ministerio the actual content of the services it has to provide and the tariffs to be applied to those services and whether, as regards non-reserved services, the company can free itself from obligations arising under the Cooperation Agreement, by giving notice as provided for in that agreement.
56. The other arguments submitted by the Spanish Government to show that a cooperation agreement like the one in issue in the main proceedings falls outside the rules on public procurement must also be rejected.
57. The Spanish Government submits, in particular, that the Cooperation Agreement cannot, in any event, be subject to the rules on public procurement because the in-house' criteria laid down in the case-law of the Court are fulfilled.
58. In this regard, it is important to recall that, according to the Court's settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority which is a contracting authority must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Case C-107/98 Teckal [1999] ECR I8121, paragraph 50; Stadt Halle and RPL Lochau , paragraph 49; Carbotermo and Consorzio Alisei , paragraph 33; and Asemfo , paragraph 55).
59. It is not necessary to analyse in greater detail whether the first of the two conditions referred to in the preceding paragraph is fulfilled, given that it is enough to hold that, in the case in the main proceedings, the second condition is not fulfilled. It is not contested that Correos, as provider of the universal postal service in Spain, does not carry out the essential part of its activities with the Ministerio or with public authorities in general, but that that company provides postal services to an unspecified number of customers of that postal service.
60. The Spanish Government submits however that the relationship between the public authority and a company with exclusive rights is, by its very nature, exclusive, which implies a degree of exclusivity that is higher than in the case of essential activity'. Correos has an exclusive right because the company is required, pursuant to Article 58 of Law 14/2000, to provide public authorities with services connected with its company objects, which includes reserved and non-reserved services.
61. In this respect, it must be held that, assuming that that obligation could effectively be called an exclusive right, a matter which is for the Audiencia Nacional to determine, such a right cannot satisfy, in the context of the analysis that must be carried out in relation to the two conditions recalled in paragraph 58 of the present judgment, the requirement that the relevant service provider must carry out the essential part of its activities with the entity or the entities that control it.
62. That last requirement is aimed particularly at ensuring that Directive 92/50 remains applicable in the event that an undertaking controlled by one or more entities is active in the market and therefore likely to be in competition with other undertakings (see, by analogy, Carbotermo and Consorzio Alisei , paragraph 60). It is not contested that Correos is active on the Spanish postal market, where it is, except as regards reserved services within the meaning of Directive 97/67, in competition with other businesses active in the postal sector, of which, according to the submissions of the Spanish Government, there are approximately 2000.
63. Therefore, it must be held that a cooperation agreement like the one in issue in the main proceedings does not fulfil the conditions noted in paragraph 58 of the present judgment and cannot on that basis fall outside the scope of Directive 92/50. | C-119/06
Italy | 36-41 | S2-1.c.s1-impl | 36 Tout d’abord, la République italienne conteste que ledit accord-cadre constitue un marché public de services au sens de l’article 1er, sous a), de ladite directive, au motif que les associations concernées ne sont pas des opérateurs commerciaux et qu’elles déploient leur activité en-dehors du marché et de la sphère de la concurrence. Cet argument est fondé sur le fait que ces associations ne poursuivent pas un but lucratif et qu’elles regroupent des personnes motivées par des considérations de solidarité sociale.
37 Sans dénier l’importance sociale des activités bénévoles, force est de constater que cet argument ne peut pas être retenu. En effet, l’absence de but lucratif n’exclut pas que de telles associations exercent une activité économique et constituent des entreprises au sens des dispositions du traité relatives à la concurrence (voir, en ce sens, arrêts du 16 novembre 1995, Fédération française des sociétés d’assurance e.a., C-244/94, Rec. p. I-4013, point 21; du 12 septembre 2000, Pavlov e.a., C-180/98 à C-184/98, Rec. p. I-6451, point 117, et du 16 mars 2004, AOK Bundesverband e.a., C- 264/01, C-306/01, C-354/01 et C-355/01, Rec. p. I-2493, point 49).
38 Il convient de rappeler que, selon la jurisprudence de la Cour, des entités telles que des organisations sanitaires assurant la fourniture de services de transport d’urgence et de transport de malades doivent être qualifiées d’entreprises au sens des règles de concurrence prévues par le traité (arrêt du 25 octobre 2001, Ambulanz Glöckner, C-475/99, Rec. p. I-8089, points 21 et 22).
39 Il en résulte que les associations concernées peuvent exercer une activité économique en concurrence avec d’autres opérateurs.
40 La circonstance que, en raison du fait que leurs collaborateurs agissent à titre bénévole, de telles associations sont susceptibles de faire des offres à des prix sensiblement inférieurs à ceux d’autres soumissionnaires ne les empêche pas de participer aux procédures de passation de marchés publics visées par la directive 92/50 (voir, en ce sens, arrêt du 7 décembre 2000, ARGE, C-94/99, Rec. p. I-11037, points 32 et 38).
41 Il en résulte que l’accord-cadre de 2004 n’est pas exclu de la notion de «marchés publics de services» au sens de l’article 1er, sous a), de la directive 92/50, en raison du fait que les associations concernées ne poursuivent pas un but lucratif. | T-125/06
Centro Studi Antonio Manieri | 44-54 | M4A1-116.7 | 44 According to Article 88 of the Financial Regulation, ‘[p]ublic contracts are contracts for pecuniary interest concluded in writing by a contracting authority within the meaning of Articles 104 and 167 [of that regulation], 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’.
45 In order to be classified as a public contract, a contract must be concluded by a ‘contracting authority’. Article 116(7) of the Implementing Regulation provides that ‘[d]epartments of the Community institutions shall be considered to be contracting authorities, save where they conclude between themselves administrative arrangements for the provision of services, the supply of products or the execution of works’.
46 It follows from the two provisions referred to above that the provision of services is outside the ambit of the rules governing public contracts where it forms part of an administrative arrangement concluded between the departments of Community institutions.
47 Contrary to the applicant’s submission, the OIB is a department of the Community institutions within the meaning of Article 116(7) of the Implementing Regulation. In accordance with recital 4 in the preamble to Decision 2003/523, ‘[t]he type of office selected [for the OIB] consists of administrative entities aimed at providing support for the activities of other Commission departments and/or potentially of other Community institutions’. By referring to ‘other Commission departments’ as being among the recipients of support from the OIB, the Commission has indicated in that recital, impliedly but necessarily, that the OIB is also one of its departments.
48 It follows that the Council was not required to comply with the rules governing public procurement when it decided to have recourse to the services of the OIB. That conclusion cannot be affected by the other arguments put forward by the applicant.
49 First of all, the applicant’s arguments that the OIB is, first, attached to the Commission and not to the Council and, second, managed exclusively by the members appointed by the Commission are invalid. The first point to be made is that the exception provided for in Article 116(7) of the Implementing Regulation concerns administrative arrangements between departments of the Community institutions, irrespective of whether such departments belong to the same institution. Secondly, the fact that the OIB is attached to the Directorate-General (DG) for Personnel and Administration of the Commission does not preclude it from being an interinstitutional body, as is clear from recitals 4 and 6 in the preamble to and Article 2(4) of Decision 2003/523. Thirdly, as regards Article 6(1)(g) of Decision 2003/523, that provision expressly states that the Management Committee of the OIB is to include a representative of the other Community institutions. That fact not only contradicts the applicant’s claim that the OIB is managed exclusively by members appointed by the Commission but also makes clear the interinstitutional character of the OIB.
50 On the same grounds, it is necessary to reject as invalid the applicant’s arguments based on the fact that the OIB is an entity which is formally distinct from the Council and independent of it with regard to decision-making. In any event, the OIB is precluded from being distinct from and independent of the Council by virtue of Article 281 EC. In view of the fact that, under that provision, only the European Community as such has legal personality under the Community institutional system, both the Council and the OIB are part of the same legal person and, consequently, the OIB cannot be regarded as an entity that is distinct from or independent of the Council.
51 With regard to the applicant’s argument that Article 116(7) of the Implementing Regulation should not be taken into account for the purpose of examining the legality of the ‘decision of 16 January 2006’, since no reference was made to that provision in the decision, it must be noted that the Council informed the applicant in the letter of 16 January 2006 of its decision to abandon the tendering procedure in view of the decision it had taken to have recourse to the services of the OIB. As regards the decision to abandon the tendering procedure, it is clear that the two provisions on which that decision is based, namely Article 101 of the Financial Regulation and paragraph 4 of the tendering specifications, were duly referred to by the Council in that letter. On the other hand, it is apparent from paragraphs 44 to 48 above that the decision to have recourse to the services of the OIB is an act that is unconnected with the tendering procedure and is of no concern to the applicant. It follows that the fact that no reference was made to Article 116(7) of the Implementing Regulation is irrelevant for the purpose of examining the legality of the decision to abandon the tendering procedure and, accordingly, the argument in question must be rejected as invalid.
52 Finally, with regard to the applicant’s argument that the internalisation of the full management of the crèche by the OIB is inconsistent with its purpose, which is to manage the externalisation of the non-core activities of the Community administration, it must be noted that the OIB is not obliged under Decision 2003/523 systematically to use tendering procedures in the performance of its tasks. While, under Article 16 of that decision, it is in fact entitled to use such a procedure, the fact remains that there is no provision which prohibits it from carrying out its task by its own means. In the absence of any formal prohibition, the OIB may therefore decide on a case-by-case basis whether it is necessary to use a tendering procedure.
53 It follows from the foregoing that the conclusion between the Council and the OIB of an arrangement for full crèche management constitutes the conclusion of an administrative arrangement between two departments of the Community institutions for the provision of services to which the rules on public procurement are not applicable.
54 The fourth plea in law must therefore be rejected in its entirety as unfounded. | T-125/06
Centro Studi Antonio Manieri | 92-94 | ECT-230
M4A1-116.7 | 92 The application for annulment of the Council’s favourable evaluation of the OIB’s proposal cannot be declared admissible.
93 The favourable evaluation of the OIB’s proposal which preceded the decision to entrust the services in question to that office is an internal act that is unconnected with the tendering procedure, given that, as was established at paragraphs 44 to 48 above, the Council is not required to comply with the rules governing public procurement when it decides to use the services of the OIB.
94 As an internal act that is unconnected with the tendering procedure, the favourable evaluation of the OIB’s proposal cannot produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. It cannot therefore constitute an act against which an action for annulment can be brought under Article 230 EC (see Joined Cases T-10/92 to T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 28 and the case-law cited) and this application for annulment must therefore be declared inadmissible. | C-371/05
Italy | 20-22 | S2-1.c-impl | 20 D’emblée, il convient de relever qu’il est constant entre les parties que la convention concerne la fourniture de services visés à l’annexe I A de la directive 92/50 et que le montant de ces services dépasse le seuil, fixé à l’article 7, paragraphe 1, de cette directive, susceptible de faire entrer la convention dans le champ d’application de celle-ci.
21 Cependant, la République italienne fait valoir que la convention n’avait pas à être soumise aux règles régissant les marchés publics étant donné que les critères de gestion «interne» étaient remplis.
22 À cet égard, il y a lieu de rappeler que, selon la jurisprudence constante de la Cour, l’appel à la concurrence, conformément aux directives relatives à la passation des marchés publics, n’est pas obligatoire, même si le cocontractant est une entité juridiquement distincte du pouvoir adjudicateur, lorsque deux conditions sont remplies. D’une part, l’autorité publique, qui est un pouvoir adjudicateur, doit exercer sur l’entité distincte en question un contrôle analogue à celui qu’elle exerce sur ses propres services et, d’autre part, cette entité doit réaliser l’essentiel de son activité avec la ou les collectivités publiques qui la détiennent (voir, notamment, arrêts Teckal, précité, point 50, ainsi que du 8 avril 2008, Commission/Italie, C-337/05, non encore publié au Recueil, point 36 et jurisprudence citée). | C-371/05
Italy | 23-30 | S2-1.c-impl | 23 Dès lors, il convient d’examiner si les deux conditions exigées par la jurisprudence mentionnée au point précédent sont remplies à l’égard d’ASI.
24 S’agissant de la première condition, relative au contrôle de l’autorité publique, il ressort de la jurisprudence de la Cour qu’il convient de tenir compte non seulement de l’ensemble des dispositions législatives, mais également des circonstances pertinentes du cas d’espèce. Il doit résulter de cet examen que la société adjudicataire est soumise à un contrôle permettant au pouvoir adjudicateur d’influencer les décisions de cette société. Il doit s’agir d’une possibilité d’influence déterminante tant sur les objectifs stratégiques que sur les décisions importantes de ladite société (voir arrêts du 13 octobre 2005, Parking Brixen, C-458/03, Rec. p. I-8585, point 65, ainsi que du 11 mai 2006, Carbotermo et Consorzio Alisei, C-340/04, Rec. p. I-4137, point 36).
25 La République italienne a fait valoir, sans être contredite sur ce point par la Commission, que la commune de Mantoue avait la faculté, en raison de son statut d’actionnaire majoritaire d’ASI, de nommer les membres des organes de direction et d’orienter l’activité de cette société. Elle a également indiqué que, en application de la convention, le conseil municipal de ladite commune fixait, par des délibérations, les frais de fonctionnement de ladite société et que la commune de Mantoue s’était réservée la possibilité de procéder à certaines vérifications, d’une part, par la désignation d’un fonctionnaire communal chargé de collaborer à l’action d’ASI, de stimuler et de contrôler cette action et, d’autre part, par le contrôle de la comptabilité de ladite société afin de s’assurer de l’application des règles d’exactitude comptable et des normes de garantie prévues par ladite convention.
26 Il en résulte que ladite commune avait la faculté d’influencer de manière déterminante tant les objectifs stratégiques que les décisions importantes d’ASI par la désignation des membres des organes de direction de cette société et d’un fonctionnaire communal chargé d’orienter et de contrôler l’action de celle-ci. Ladite faculté suffit à caractériser l’existence d’un pouvoir de contrôle structurel et fonctionnel de la commune de Mantoue sur ladite société analogue à celui qu’elle exerce sur ses propres services, de sorte que la première condition posée par la Cour au point 50 de l’arrêt Teckal, précité, est remplie.
27 La Commission fait cependant valoir que ladite condition ne pouvait être remplie dès lors que, premièrement, au moment de la conclusion de la convention, deux organismes de droit privé, à savoir TEA Spa et APAM Spa, détenaient des participations dans le capital d’ASI et que, deuxièmement, à supposer même que cette dernière soit une société à capital entièrement public, la participation d’associés privés était explicitement prévue dès sa constitution.
28 Or, s’agissant du premier argument soulevé par la Commission, il suffit de constater que celle-ci n’a pas contesté les informations fournies par la République italienne dans le mémoire en duplique, selon lesquelles les deux sociétés en question étaient elles aussi des entreprises communales.
29 En ce qui concerne le second argument soulevé par la Commission, il y a lieu de relever que la possibilité pour des personnes privées de participer au capital de la société adjudicataire, eu égard notamment à la forme sociale de ladite société, ne suffit pas, en l’absence d’une participation effective de leur part au moment de la conclusion d’une convention telle que celle en cause dans la présente affaire, pour conclure que la première condition, relative au contrôle de l’autorité publique, n’est pas remplie. En effet, pour des raisons de sécurité juridique, l’éventuelle obligation pour le pouvoir adjudicateur de procéder à un appel d’offres public doit être examinée, en principe, au vu des conditions prévalant à la date de l’attribution du marché public en cause (voir, en ce sens, arrêt du 10 novembre 2005, Commission/Autriche, C-29/04, Rec. p. I-9705, point 38).
30 Certes, des circonstances particulières, notamment lorsqu’il apparaît que l’ouverture du capital de l’entité concernée à des associés privés était envisagée dès l’attribution dudit marché public, peuvent requérir la prise en compte d’une participation effective desdits associés intervenue ultérieurement à ladite attribution (voir, en ce sens, arrêt Commission/Autriche, précité, points 38). Toutefois, en l’espèce, force est de constater que la Commission n’est pas parvenue à rapporter la preuve de l’existence de telles circonstances particulières. | C-371/05
Italy | 31-36 | S2-1.c-impl | 31 S’agissant de la seconde condition, relative à l’activité de l’entité concernée, il convient de rappeler qu’une entreprise réalise l’essentiel de son activité avec la collectivité qui la détient, au sens de l’arrêt Teckal, précité, si l’activité de cette entreprise est consacrée principalement à cette collectivité, toute autre activité ne revêtant qu’un caractère marginal (voir arrêt Carbotermo et Consorzio Alisei, précité, point 63).
32 En outre, dans le cas où plusieurs collectivités détiennent une entreprise, la condition relative à l’activité peut être satisfaite si cette entreprise effectue l’essentiel de son activité non nécessairement avec telle ou telle de ces collectivités, mais avec ces collectivités prises dans leur ensemble. Par conséquent, l’activité à prendre en compte dans le cas d’une entreprise détenue par plusieurs collectivités est celle que cette entreprise réalise avec l’ensemble de ces collectivités (voir arrêt Carbotermo et Consorzio Alisei, précité, points 70 et 71).
33 À cet égard, il ressort des pièces présentées par la République italienne que, s’il est tenu compte des activités réalisées par ASI non pas uniquement en faveur de la commune de Mantoue mais pour toutes les collectivités qui la détiennent, ces activités peuvent être considérées comme étant consacrées essentiellement auxdites collectivités.
34 Partant, la seconde condition posée par la Cour au point 50 de l’arrêt Teckal, précité, est remplie.
35 Dans ces conditions, il convient de considérer que la République italienne a démontré à suffisance de droit que les conditions exigées par la jurisprudence mentionnée au point 22 du présent arrêt sont réunies et que, dès lors, la commune de Mantoue n’était pas tenue de faire appel à la concurrence avant de conclure la convention.
36 En conséquence, le recours de la Commission doit être rejeté comme non fondé. | C-337/05
Italy | 36-41 | G2-na [C3-1.8.1] | 36. According to the Court's settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority, which is a contracting authority, must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Teckal , cited above, paragraph 50; Case C26/03 Stadt Halle and RPL Lochau [2005] ECR I1, paragraph 49; Case C84/03 Commission v Spain [2005] ECR I139, paragraph 38; Case C29/04 Commission v Austria [2005] ECR I9705, paragraph 34; Case C340/04 Carbotermo and Consorzio Alisei [2006] ECR I4137, paragraph 33; and Case C295/05 Asemfo [2007] ECR I2999, paragraph 55).
37. Therefore, it must be examined whether the two conditions required by the case-law mentioned in the preceding paragraph are met with regard to Agusta.
38. As regards the first condition, relating to the public authority's control, it is important to note that the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority in question is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments (see Stadt Halle and RPL Lochau , cited above, paragraph 49).
39. In that regard, as is shown by the study annexed to the defence on the Italian State's shareholdings in EFIM (Ente Partecipazioni e Finanziamento Industrie Manifatturiere), Finmeccanica and Agusta, the latter, which has, since its formation, been a company governed by private law, has, since 1974, always been a private company with government participation, that is to say a company whose capital is held in part by that State and in part by private shareholders.
40. Thus, since Agusta is a company in part open to private capital and therefore meets the criterion stated in paragraph 38 of the present judgment, the Italian State cannot exercise over that company a control similar to that which it exercises over its own departments.
41. In such circumstances, and without the necessity of examining whether Agusta carries out the essential part of its activities with the concession-granting public authority, the Italian Republic's argument that there is an in-house' relationship between that company and the Italian State must be rejected. | C-295/05
Asemfo | 48-54 | G2-na [C3-1.8.1]
S2-1.c
W2-na | 48. In that regard, it must be observed that, according to the definitions given in Article 1(a) of each of the Directives mentioned in the preceding paragraph, a public service, supply or works contract assumes the existence of a contract for pecuniary interest in writing between, first, a service provider, a supplier or a contractor and, second, a contracting authority within the meaning of Article 1(b) of those directives.
49. In this case it is appropriate to hold , first of all, that, under Article 88(1) and (2) of Ley 66/1997 Tragsa is a State company the share capital of which may also be held by the Autonomous Communities. Article 88(4) and the first subparagraph of Article 3(1) of Royal Decree 371/1999 state that Tragsa is an instrument and a technical service of the General State Administration and of the administration of each of the Autonomous Communities concerned.
50. Next, as is clear from Articles 3(2) to (5), and 4(1), (2) and (7) of Royal Decree 371/1999, Tragsa is required to carry out the orders given it by the General State Administration, the Autonomous Communities and the public bodies subject t o them, in the areas covered by its company objects, and it is not entitled to fix freely the tariff for its actions.
51. Finally, under Article 3(6) of Royal Decree 371/1999, Tragsa's relations with those public bodies, inasmuch as that company is an instrument and a technical service of those bodies, are not contractual, but in every respect internal, dependent and subordinate.
52. Asemfo submits that the legal relationship which flows from the orders which Tragsa receives, even though it is formally unilateral, reveals in fact, as is clear from the Court's case-law, an indisputable contractual link with the limited partner. Asemfo refers, in that regard, to Case C399/98 Ordine degli Architetti and Others [2001] ECR I-5409. In those circumstances even if Tragsa seems to act on the instructions of the public authorities, it is, in fact, a party contracting with the Administration, so that the rules for public procurement ought to be applied.
53. In that regard, it is appropriate to observe that, in paragraph 205 of the judgment in Spain v Commission , the Court held, in a different context from that of the main proceedings, that being an instrument and technical service of the Spanish Administration, Tragsa is required to implement, itself or using its subsidiaries, only work entrusted to it by General Administration of the State, the Autonomous Communities or the public bodies subject to them.
54. It must be observed that, if, which it is for the referring court to establish, Tragsa has no choice, either as to the acceptance of a demand made by the competent authorities in question, or as to the tariff for its services, the requirement for the application of the directives concerned relating to the existence of a contract is not met. | C-295/05
Asemfo | 55-65 | G2-na [C3-1.8.1]
S2-1.c
W2-na | 55. In any event, it is important to recall that, according to the Court's settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority which is a contracting authority must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Case C107/98 Teckal [1999] ECR I8121, paragraph 50; Case C26/03 Stadt Halle and RPL Loclau [2005] ECR I-1 paragraph 49; Case C-84/03 Commission v Spain [2005] ECR I-139, paragraph 38; Case C-29/04 Commission v Austria [2005] ECR I-9705, paragraph 34; and Case C-340/04 Carbotermo and Consorzio Alisei [2006] ECR I-4137, paragraph 33).
56. Accordingly, it is appropriate to examine whether the two conditions required by the case-law cited in the preceding paragraph are met in Tragsa's case.
57. As regards the first condition, relating to the public authority's control, it follows from the Court's case-law that the fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, generally, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments (Carbotermo and Consorzio Alisei , paragraph 37).
58. In the case in the main proceedings, it is clear from the case file, but subject to confirmation by the referring court, that 99% of Tragsa's share capital is held by the Spanish State itself and through a holding company and a guarantee fund, and that four Autonomous Communities, each with one share, hold 1% of such capital.
59. In that regard, the argument cannot be accepted that that condition is met only for contracts performed at the demand of the Spanish State, excluding those which are the subject of a demand from the Autonomous Communities as regards which Tragsa must be regarded as a third party.
60. It appears to follow from Article 88(4) of Ley 66/1997 and Articles 3(2) to (6) and 4(1) and (7) of Royal Decree 371/1999 that Tragsa is required to carry out the orders given it by the public authorities, including the Autonomous Communities. It also seems to follow from that national legislation that, as with the Spanish State, in the context of its activities with those Communities, as an instrument and technical service, Tragsa is not free to fix the tariff for its actions and that its relationships with them are not contractual.
61. It seems therefore that Tragsa cannot be regarded as a third party in relation to the Autonomous Communities which hold a part of its capital.
62. As regards the second condition, relating to the fact that the essential part of Tragsa's activities must be carried out with the authority or authorities which own it, it follows from the case-law that, where several authorities control an undertaking, that condition may be met if that undertaking carries out the essential part of its activities, not necessarily with any one of those authorities, but with all of those authorities together (Carbotermo and Consorzio Alisei , paragraph 70).
63. In the case in the main proceedings, as is clear from the case-file, Tragsa carries out more than 55% of its activities with the Autonomous Communities and nearly 35% with the State. It thus appears that the essential part of its activities is carried out with the public authorities and bodies which control it.
64. In those circumstances, but subject to confirmation by the referring court, it must be held that the two conditions required by the case-law cited in paragraph 55 of the present judgment are met in this case.
65. It follows from the entirety of the foregoing considerations that the reply to the second question must be that a body of rules such as that governing Tragsa which enables it, as a public undertaking acting as an instrument and technical service of several public authorities, to execute operations without being subject to the regime laid down by those directives, is not contrary to Directives 92/50, 93/36 and 93/37, since first, the public authorities concerned exercise over that undertaking a control similar to that which they exercise over their own departments, and, second, such an undertaking carries out the essential part of its activities with those same authorities. | C-220/05
Auroux | 63-68 | W2-na [C3-1.8.1] | 63. It is true that, according to the Court's case-law, a call for competition is not compulsory for contracts concluded between a local authority and a person legally distinct from it, where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities (see, Teckal , paragraph 50, and Case C-84/03 Commission v Spain [2005] ECR I-139, paragraphs 38 and 39).
64. However, the fact that SEDL is a semi-public company, whose capital includes private funds, prevents the municipality of Roanne from being regarded as exercising a control over it similar to that which it exercises over its own departments. The Court has held that any private capital investment in an undertaking follows considerations proper to private interests and pursues objectives of a different kind from those pursued by a public authority (see Stadt Halle and RPL Lochau , paragraphs 49 and 50). The reasoning adopted by the Court in Stadt Halle and RPL Lochau with respect to public service contracts also applies with respect to public works contracts.
65. According to the submissions of the municipality of Roanne and those of the French and Polish Governments, the effectiveness of the Directive is preserved where, as in the present case, a second contracting authority is obliged to use the procedures for the award of public works contracts laid down by the Directive for any subsequent contract. For the purposes of ensuring effective competition, it is irrelevant whether such a procedure is organised by the first or the second contracting authority.
66. It must be recalled, first of all, that the Directive does not contain any provisions which enable its application to be avoided where a public works contract is concluded between two contracting authorities, even if the second contracting authority is obliged to subcontract the total value of the contract to successive contractors and, for that purpose, to use the procedures for the award of public contracts laid down by the Directive.
67. Furthermore, in this case, it is not stipulated in the agreement that SEDL is obliged to subcontract the whole of the initial contract to successive contractors. Furthermore, as the Advocate General rightly observed in point 72 of her Opinion, where a second contracting authority has recourse to subcontractors, the subject-matter of any successive contract may often represent only part of the overall contract. It may follow that the value of any subsequent contracts awarded by a second contracting authority will be lower than that set out in Article 6(1)(a) of the Directive. Therefore, by setting up a series of successive contracts, the application of the Directive could be avoided.
68. Having regard to the foregoing, the answer to the third question must be that a contracting authority is not exempt from using the procedures for the award of public works contracts laid down in the Directive on the ground that, in accordance with national law, the agreement may be concluded only with certain legal persons, which themselves have the capacity of contracting authority and which will be obliged, in turn, to apply those procedures to the award of any subsequent contracts. | C-340/04
Carbotermo | 33-40+47 | G2-na [C3-1.8.1] | 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).
33. In accordance with Article 1(a) of that directive, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities (Teckal , paragraph 50).
34. It is apparent from the order for reference and the evidence in the case-file that, at present, the contracting authority holds 99.98% of the share capital in AGESP Holding, with the remaining 0.02% being held by other local authorities. According to AGESP Holding's statutes, private shareholders may acquire holdings in that company, on two conditions: first, the majority of the shares are reserved for the Comune di Busto Arsizio; second, no private shareholder may hold more than one tenth of the share capital of that company.
35. At present, AGESP Holding holds 100% of the share capital in AGESP. According to the latter's statutes, private shareholders may acquire holdings in it subject to only one condition, namely that, with the exception of AGESP Holding, no shareholder may hold more than one tenth of the share capital of that company.
36. In order to determine whether the contracting authority exercises a control similar to that which it exercises over its own departments, it is necessary to take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the successful tenderer is subject to a control enabling the contracting authority to influence that company's decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions of that company (see Case C-458/03 Parking Brixen [2005] ECR I0000, paragraph 65).
37. The fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, without being decisive, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments, as contemplated in paragraph 50 of Teckal.
38. It is apparent from the case-file that the statutes of AGESP Holding and AGESP confer on the Board of Directors of each of those companies the broadest possible powers for the ordinary and extraordinary management of the company. Those statutes do not reserve for the Comune di Busto Arsizio any control or specific voting powers for restricting the freedom of action conferred on those Boards of Directors. The control exercised by the Comune di Busto Arsizio over those two companies can be described as consisting essentially of the latitude conferred by company law on the majority of the shareholders, which places considerable limits on its power to influence the decisions of those companies.
39. Moreover, any influence which the Comune di Busto Arsizio might have on AGESP's decisions is through a holding company. The intervention of such an intermediary may, depending on the circumstances of the case, weaken any control possibly exercised by the contracting authority over a joint stock company merely because it holds shares in that company.
40. It follows that, in such circumstances, subject to their being verified by a court adjudicating on the substance in the main proceedings, the contracting authority does not exercise over the successful tenderer for the public procurement contract at issue here a control similar to that which it exercises over its own departments.
.....
47. Accordingly, the answer to the first question must be that Directive 93/36 precludes the direct award of a public supply and service contract, the main value of which lies in supply, to a joint stock company whose Board of Directors has ample managerial powers which it may exercise independently and whose share capital is, at present, held entirely by another joint stock company whose majority shareholder is, in turn, the contracting authority. | C-340/04
Carbotermo | 58-72 | G2-na [C3-1.8.1]
ECT-2 | 58. It should be borne in mind that the principal objective of the Community rules in the field of public procurement is the free movement of services and the opening-up to undistorted competition in all the Member States (see, to that effect, Case C26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 44).
59. The conditions laid down in Teckal for a finding that Directive 93/36 is inapplicable to the contracts concluded between a local authority and a person legally distinct from it, according to which the local authority must exercise over the person in question a control similar to that which it exercises over its own departments and that person must carry out the essential part of its activities with the controlling authority or authorities, are aimed precisely at preventing distortions of competition.
60. The requirement that the person in question must carry out the essential part of its activities with the controlling authority or authorities is aimed precisely at ensuring that Directive 93/36 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market and therefore likely to be in competition with other undertakings.
61. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling authority, if it can still carry out a large part of its economic activities with other operators.
62. It is still necessary that that undertaking's services be intended mostly for that authority alone. Within such limits, it appears justified that that undertaking is not subject to the restrictions of Directive 93/36 , since they are in place to preserve a state of competition which, in that case, no longer has any raison d'être.
63. In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking's activities are devoted principally to that authority and any other activities are only of marginal significance.
64. In order to determine if that is the case, the competent court must take into account all the facts of the case, both qualitative and quantitative.
65. As to the issue of whether it is necessary to take into account in that context only the turnover achieved with the supervisory authority or that achieved within its territory, it should be held that the decisive turnover is that which the undertaking in question achieves pursuant to decisions to award contracts taken by the supervisory authority, including the turnover achieved with users in the implementation of such decisions.
66. The activities of a successful undertaking which must be taken into account are all those activities which that undertaking carries out as part of a contract awarded by the contracting authority, regardless of who the beneficiary is: the contracting authority itself or the user of the services.
67. It is also irrelevant who pays the undertaking in question, whether it be the controlling authority or third-party users of the services provided under concessions or other legal relationships established by that authority. The issue of in which territory those services are provided is also irrelevant.
68. If, in the main proceedings, the share capital of the successful undertaking is held indirectly by several authorities, it may be relevant to consider whether the activities to be taken into account are those which the successful undertaking carries out with all of the controlling authorities or only the activities carried out with the authority which in the present case acts as the contracting authority.
69. It should be borne in mind in this connection that the Court has stated that the legally distinct person in question must carry out the essential part of its activities with the controlling local authority or authorities' (Teckal , paragraph 50). It thus envisaged the possibility that the exception provided for could apply not only in cases where a single authority controls such a legal person, but also where several authorities do so.
70. Where several authorities control an undertaking, the condition relating to the essential part of its activities may be met if that undertaking carries out the essential part of its activities, not necessarily with one of those authorities, but with all of those authorities together.
71. Accordingly, the activities to be taken into account in the case of an undertaking controlled by one or more authorities are those which that undertaking carries out with all of those authorities together.
72. It follows from the foregoing that the answer to the second part of the second question must be that, in order to determine whether an undertaking carries out the essential part of its activities with the controlling authority, for the purpose of deciding on the applicability of Directive 93/36 , account must be taken of all the activities which that undertaking carries out on the basis of an award made by the contracting authority, regardless of who pays for those activities, whether it be the contracting authority itself or the user of the services provided; the territory where the activities are carried out is irrelevant. | C-29/04
Austria | 31-33 | S2-1.c.s1 | 31. In this case, the Commission is essentially alleging that the Austrian authorities permitted the award by a municipality of a public service contract to a company which is legally distinct from that municipality and 49% owned by a private undertaking without the public tendering procedure provided for in Directive 92/50 being implemented.
32. It must be stated at the outset that the conditions for application of that directive were fulfilled in the present case. The town of Mödling is regarded, qua local authority, as a contracting authority', within the meaning of Article 1(b) of Directive 92/50, which entered into a contract for pecuniary interest with AbfallgmbH, which is a service provider' within the meaning of Article 1(c) of that directive. Services for the collection and treatment of waste constitute services within the meaning of Article 8 of that directive and Annex I A thereto. Furthermore, according to the findings of the Commission, which have not been disputed by the Austrian Government, the threshold laid down in Article 7(1) of Directive 92/50, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1) was exceeded in the present case.
33. Consequently, the award of a contract in respect of those services could, under Article 8 of Directive 92/50, occur only in compliance with the rules laid down in Titles III to VI of that directive, in particular in Articles 11 and 15(2) thereof. Under the latter provision it was for the contracting authority concerned to publish a contract notice. | C-29/04
Austria | 34-42 | S2-1.c.s1 | 34. However, according to the Court's case-law, a call for tenders is not mandatory, even though the other contracting party is an entity legally distinct from the contracting authority, where the public authority which is a contracting authority exercises over the separate entity concerned a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activities with the controlling public authority or authorities (Teckal , paragraph 50, and Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 49).
35. The Austrian Government maintains that that was the case in this instance so that there was no need to apply the procedures for the award of public service contracts provided for in Directive 92/50.
36. First, that government contends that the conclusion of the waste disposal contract with AbfallgmbH, which occurred while the shares in that company were still entirely held by the town of Mödling, was not intended to establish a relationship between independent legal persons given that that local authority was able to exercise over AbfallgmbH a control similar to that which it exercises over its own departments. Consequently, that contract does not come within the scope of Directive 92/50 and there is no obligation on the town of Mödling to arrange a public call for tenders.
37. That argument cannot be upheld.
38. In the present case, the relevant date in order to determine whether the provisions of Directive 92/50 should have been applied is not the actual date on which the public contract at issue was awarded, and it is not necessary to resolve the issue of whether the municipality of Mödling's holding of the whole of the capital in AbfallgmbH on the date on which the public service contract was awarded was sufficient to establish that that local authority exercised over AbfallgmbH a control similar to that which it exercises over its own departments. Even though it is true that for reasons of legal certainty it is, in general, appropriate to consider the contracting authority's possible obligation to arrange a public call for tenders in the light of the circumstances prevailing on the date on which the public contract at issue is awarded, the particular circumstances of this case require the events which took place subsequently to be taken into account.
39. It must be borne in mind that the transfer of 49% of the shares in AbfallgmbH took place shortly after that company was made responsible, exclusively and for an unlimited period, for the collection and treatment of the town of Mödling's waste. Furthermore, AbfallgmbH became operational only after Saubermacher AG took over some of its shares.
40. Thus, it is not disputed that, by means of an artificial construction comprising several distinct stages, namely the establishment of AbfallgmbH, the conclusion of the waste disposal contract with that company and the transfer of 49% of its shares to Saubermacher AG, a public service contract was awarded to a semi-public company 49% of the shares in which were held by a private undertaking.
41. Accordingly, the award of that contract must be examined taking into account all those stages as well as their purpose and not on the basis of their strictly chronological order as suggested by the Austrian Government.
42. To examine, as the Austrian Government suggests, the award of the public contract at issue only from the standpoint of the date on which it took place, without taking account of the effects of the transfer within a very short period of 49% of the shares in AbfallgmbH to Saubermacher AG, would prejudice the effectiveness of Directive 92/50. The achievement of the objective of that directive, namely the free movement of services and the opening-up to undistorted competition in all the Member States, would be jeopardised if it were permissible for contracting authorities to resort to devices designed to conceal the award of public service contracts to semi-public companies. | C-29/04
Austria | 43-50 | S2-1.c.s1 | 43. Secondly, the Austrian Government submits that, even after having transferred 49% of the shares in AbfallgmbH to Saubermacher AG, the town of Mödling retained a control identical to that exercised over its own departments. In view of the judgment in Teckal , that factor exempted it from arranging a public call for tenders on the ground that the conclusion of the waste disposal contract constituted an in-house' transaction.
44. In this respect, it must be noted that, in the present case, the contract at issue, relating to services within the material scope of Directive 92/50, was concluded for pecuniary interest between a contracting authority and a company governed by private law, which is legally distinct from the authority and in the capital of which that contracting authority has a majority holding.
45. In Stadt Halle and RPL Lochau , the Court has already considered the question of whether, in such circumstances, the contracting authority is obliged to apply the public tendering procedures laid down by Directive 92/50 merely because a private company has a holding, albeit a minority one, in the capital of the company with which it concludes the contract.
46. It held that the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority concerned is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments (Stadt Halle and RPL Lochau , paragraph 49).
47. The relationship between a public authority which is a contracting authority and its own departments is governed by considerations and requirements proper to the pursuit of objectives in the public interest. Any private capital investment in an undertaking, on the other hand, follows considerations proper to private interests and pursues objectives of a different kind (Stadt Halle and RPL Lochau , paragraph 50).
48. The award of a public contract to a semi-public company without calling for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, in that such a procedure would offer a private undertaking with a capital presence in that undertaking an advantage over its competitors (Stadt Halle and RPL Lochau , paragraph 51).
49. The Court held that, where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50 with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied (Stadt Halle and RPL Lochau , paragraph 52).
50. Thus, having regard to the foregoing, it must be found that, in that the contract for the disposal of the town of Mödling's waste was entered into without complying with the procedural and advertising rules laid down by Article 8, in conjunction with Articles 11(1) and 15(2) of Directive 92/50, the Republic of Austria has failed to fulfil its obligations under that directive. | C-264/03
France | 42-48 | S2-1.c.s1
ECT-50 | 42. Finally, Article 1(c) of Directive 92/50 defines service provider' as any natural or legal person, including a public body, which offers services'. Article 50 EC treats services' as such where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons'. The contracts which have as their object services listed in Annex IA to Directive 92/50 are to be awarded in accordance with the provisions of Titles III to VI and those listed in Annex IB in accordance with Articles 14 and 16 of that directive.
43. The persons which may be appointed to fulfil the responsibilities of the delegated project contractor are listed in Article 4 of Law No 85704. It is appropriate to observe that some of those persons may, themselves, be contracting authorities within the meaning of Article 1(b) of Directive 92/50. While Article 6 of that directive excludes from its scope public service contracts awarded to an entity which is itself a contracting authority on the basis of an exclusive right which it enjoys pursuant to a published law, regulation or administrative provision, the fact remains that those conditions are not satisfied in the circumstances of this case.
44. Persons eligible to be appointed to fulfil the responsibilities of the delegated project contractor may be regarded as service providers', since the responsibilities entrusted to them, by the agency agreement of delegated project contracting, under Article 3 of Law No 85704, correspond to the provision of services within the meaning of Community law.
45. In that regard, the argument developed by the French Government to establish that the agent does not provide services cannot be accepted.
46. It is clear from Article 3 of Law No 85704, which lists the responsibilities which the contracting authority may appoint an agent to fulfil, that the agency agreement of delegated project contracting is not only a contract by which the agent undertakes to represent the contracting authority. Those responsibilities include various tasks corresponding, first, to providing technical and administrative assistance and, second, to tasks the object of which is the representation of the contracting authority.
47. First of all, as regards the question whether the function of representation is, as the French Government contends, inseparable from all the actions performed by the agent on behalf of the principal, it must be observed that it is perfectly feasible to separate those different tasks. Indeed, the contracting authority may appoint an agent, under Article 3 of Law No 85704, to fulfil all or any of the responsibilities listed in that provision. It is important also to state, as the Advocate General correctly noted in point 37 of his Opinion, that there is nothing to prevent the possibility of those tasks being subject to different rules.
48. Next, as regards the nature of those responsibilities, it is appropriate to observe that the question whether the agent contributes to the performance of a task in the public interest is not decisive in determining whether or not he provides services. It is not unusual, in the field of public procurement, for the contracting authority to entrust to a third party an economic task intended to meet a public interest need. That statement is corroborated, in particular, by the fact that Directive 92/50 applies, with certain exceptions, to public service contracts awarded by contracting authorities in the field of defence. | C-458/03
Parking Brixen | 56-61 | S2-1.c-impl
ECT-12
ECT-43
ECT-49 | 56. Secondly, the Italian Republic, Stadtwerke Brixen AG and the Gemeinde Brixen contend that the application of the rules of the Treaty and of the general principles of Community law to a situation such as that in the main proceedings is precluded by the fact that Stadtwerke Brixen AG is not an entity independent of that municipality. In support of that argument, they rely on the judgment in Case C-107/98 Teckal [1999] ECR I-8121, paragraphs 49 to 51.
57. In that regard, it is important to recall that, in Teckal , cited above, the Court held that Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) 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 goods.
58. As regards the existence of such a contract, the Court stated, in paragraph 50 of the judgment in Teckal , that, in accordance with Article 1(a) of Directive 93/36, it is in principle sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
59. The Court has confirmed that the same considerations apply to Directive 92/50 on public service contracts and 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) (see, respectively, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraphs 48, 49 and 52, and Case C-84/03 Commission v Spain [2005] ECR I-139, paragraph 39).
60. Those considerations are based on the premiss that the application of Directives 92/50, 93/36 and 93/37 depends on the existence of a contract concluded between two distinct persons (see Teckal , paragraphs 46 and 49). Yet the application of Articles 12 EC, 43 EC and 49 EC, as well as the principles of equal treatment, non-discrimination and transparency associated with them, does not depend on the existence of a contract. As a result, the considerations developed in the case-law cited in paragraphs 56 to 59 of this judgment do not apply automatically either to those provisions of the Treaty or to those principles.
61. Nevertheless, it must be held that those considerations may be transposed to the Treaty provisions and to the principles which relate to public service concessions excluded from the scope of the directives on public procurement. Indeed, in the field of public procurement and public service concessions, the principle of equal treatment and the specific expressions of that principle, namely the prohibition on discrimination on grounds of nationality and Articles 43 EC and 49 EC, are to be applied in cases where a public authority entrusts the supply of economic activities to a third party. By contrast, it is not appropriate to apply the Community rules on public procurement or public service concessions in cases where a public authority performs tasks in the public interest for which it is responsible by its own administrative, technical and other means, without calling upon external entities (see, to that effect, Stadt Halle and RPL Lochau , paragraph 48). | C-84/03
Spain | 38-40 | G2-na [C3-1.8.1]
W2-na [C3-1.8.1] | 38. In accordance with Article 1(a) of Directive 93/36, it is sufficient, in principle, if the contract was concluded between a local authority and a person legally distinct from it. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. (judgment in Teckal , paragraph 50).
39. Having regard to the fact that the elements constituting the definition of a contract in Directives 93/36 and 93/37 are identical, except for the purpose of the contract in question, the approached adopted in Teckal must be applied to inter-administrative agreements covered by Directive 93/37.
40. Consequently, in so far as it excludes, a priori, from the scope of the codified law relations between public authorities, their public bodies and, in a general manner, non-commercial bodies governed by public law, whatever the nature of those relations, the Spanish law at issue in this case constitutes an incorrect transposition of Directives 93/36 and 93/37. | C-26/03
Stadt Halle | 42-46 | S2-1.c
S2-11.3
ECT-2-impl | 42. By this second series of questions, which should be considered together, the national court essentially asks whether, where a contracting authority intends to conclude with a company governed by private law, legally distinct from the authority and in which it has a majority capital holding and exercises a certain control, a contract for pecuniary interest relating to services within the material scope of Directive 92/50, it is always obliged to apply the public award procedures laid down by that directive, merely because a private company has a holding, even a minority one, in the capital of the company with which it concludes the contract. If that question is answered in the negative, the national court asks what the criteria are by reference to which it should be considered that the contracting authority is not subject to such an obligation.
43. This question concerns the particular situation of a semi-public' company, set up and functioning in accordance with the rules of private law, from the point of view of the obligation of a contracting authority to apply the Community rules in the field of public procurement where the conditions for such application are satisfied.
44. On this point, the principal objective of the Community rules in the field of public procurement, as stated in connection with the answer to Question 1, should be recalled, namely the free movement of services and the opening-up to undistorted competition in all the Member States. That involves an obligation on all contracting authorities to apply the relevant Community rules where the conditions for such application are satisfied.
45. The obligation to apply the Community rules in such a case is confirmed by the fact that in Article 1(c) of Directive 92/50 the term service provider', that is, a tenderer for the purposes of the application of that directive, also includes a public body, which offers services' (see Case C94/99 ARGE [2000] ECR I11037, paragraph 28).
46. Any exception to the application of that obligation must consequently be interpreted strictly. Thus the Court has held, concerning recourse to a negotiated procedure without the prior publication of a contract notice, that Article 11(3) of Directive 92/50, which provides for such a procedure, must, as a derogation from the rules intended to ensure the effectiveness of the rights conferred by the EC Treaty in relation to public service contracts, be interpreted strictly and that the burden of proving the existence of exceptional circumstances justifying the derogation lies on the person seeking to rely on those circumstances (Joined Cases C20/01 and C28/01 Commission v Germany [2003] ECR I3609, paragraph 58). | C-26/03
Stadt Halle | 47-52 | S2-1.c | 47. In the spirit of opening up public contracts to the widest possible competition, as the Community rules intend, the Court has held, with reference to Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), that that directive is applicable in the case where a contracting authority plans to conclude a contract for pecuniary interest with an entity which is legally distinct from it, whether or not that entity is itself a contracting authority (Case C107/98 Teckal [1999] ECR I8121, paragraphs 50 and 51). It is relevant to note that the other contracting party in that case was a consortium consisting of several contracting authorities, of which the contracting authority in question was also a member.
48. A public authority which is a contracting authority has the possibility of performing the tasks conferred on it in the public interest by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments. In such a case, there can be no question of a contract for pecuniary interest concluded with an entity legally distinct from the contracting authority. There is therefore no need to apply the Community rules in the field of public procurement.
49. In accordance with the Court's case-law, it is not excluded that there may be other circumstances in which a call for tenders is not mandatory, even though the other contracting party is an entity legally distinct from the contracting authority. That is the case where the public authority which is a contracting authority exercises over the separate entity concerned a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activities with the controlling public authority or authorities (see, to that effect, Teckal , paragraph 50). It should be noted that, in the case cited, the distinct entity was wholly owned by public authorities. By contrast, the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority in question is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments.
50. In this respect, it must be observed, first, that the relationship between a public authority which is a contracting authority and its own departments is governed by considerations and requirements proper to the pursuit of objectives in the public interest. Any private capital investment in an undertaking, on the other hand, follows considerations proper to private interests and pursues objectives of a different kind.
51. Second, the award of a public contract to a semi-public company without calling for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, in particular in that such a procedure would offer a private undertaking with a capital presence in that undertaking an advantage over its competitors.
52. The answer to Question 2(a) and (b) must therefore be that, where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50 with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied. | C-310/01-S
Udine | O.2 | S2-1.c-impl | Directive 93/36 applies to such a contract unless the contracting authority exercises over the supplier a control which is similar to that which it exercises over its own departments and the supplier carries out the essential parts of its activities with the controlling contracting authority or authorities. | C-94/99
ARGE | 24-32 | S2-1.c
S2-3.2
ECT-87-88-impl | 24 The Court must observe that, as the Bundesvergabeamt has noted, the contracting authority is bound, under Directive 92/50, to observe the principle of equal treatment of tenderers. Under Article 3(2) of the directive, contracting authorities are to ensure that there is no discrimination between different service providers.
25 Nevertheless, as the Austrian and French Governments and the Commission have argued, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of the other, unsubsidised, tenderers, to take part in a procedure for the award of a public procurement contract does not amount to a breach of the principle of equal treatment.
26 If the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly.
27 Articles 23 and 29 to 37 of Directive 92/50 lay down detailed criteria for the selection of service providers permitted to submit a tender and the criteria for the award of the contract, but none of those provisions provides that tenderers may be excluded or their tenders rejected simply because they receive public subsidies.
28 On the contrary, Article 1(c) of Directive 92/50 expressly authorises the participation, in a procedure for the award of a public procurement contract, of bodies funded in some cases out of the public purse. It provides that a tenderer means a service provider which has submitted a tender and defines that provider as any natural or legal person, including a public body, which offers its services.
29 While it is not, therefore, contrary in itself to the principle of equal treatment of tenderers for public bodies to take part in a procedure for the award of public procurement contracts, even in circumstances such as those described in the first question, it is not excluded that, in certain specific circumstances, Directive 92/50 requires, or at the very least allows, the contracting authorities to take into account the existence of subsidies, and in particular of aid incompatible with the Treaty, in order, where appropriate, to exclude tenderers in receipt of such aid.
30 The Commission correctly states in this connection that a tenderer may be excluded from a selection procedure where the contracting authority considers that it has received aid incompatible with the Treaty and that the obligation to repay illegal aid would threaten its financial well-being, so that that tenderer may be regarded as unable to offer the necessary financial or economic security.
31 However, in order to answer the question of principle raised in the main proceedings, it is neither necessary nor indeed possible, having regard to the contents of the case-file, to define the conditions in which contracting authorities would be bound, or entitled, to exclude tenderers which receive subsidies.
32 In answer to the first question it is, therefore, sufficient to state that the mere fact that the contracting authority allows bodies receiving subsidies of any kind, whether from that contracting authority or from other authorities, which enable them to submit tenders at prices appreciably lower than those of the other, unsubsidised, tenderers to take part in a procedure for the award of a public service contract does not amount to a breach of the principle of equal treatment laid down in Directive 92/50. | C-399/98
Ordine degli Architetti | 90-95 | W2-1.a
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-107/98
Teckal | 48-51 | G2-na [C3-1.8.1] | 48 It is common ground in the present case that AGAC supplies products, namely fuel, to the Municipality of Viano in return for payment of a price.
49 As to whether there is a contract, the national court must determine whether there has been an agreement between two separate persons.
50 In that regard, in accordance with Article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
51 The answer to the question must therefore be that Directive 93/36 is applicable in the case 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. |
| Case | Pte | Ref | Text | N-060310
Fagligt Fælles Forbund | 4-6+K2 | NPL2-na [C3-1.8.1] | 4. EF-domstolen har i en række afgørelser beskæftiget sig med betingelserne for, at en virksomhed kan anses for »in house« i forhold til en offentlig ordregiver med den konsekvens, at virksomheden i relation til EUudbudsreglerne skal anses for at være en del af ordregiveren. Dette gælder således følgende afgørelser: Dom af 18. november 1999 i sag C-107/98, Teckal, dom af 11. januar 2005 i sag C-26/03, Stadt Halle, dom af 21. juli 2005 i sag C-231/03, Coname, og dom af 13. oktober 2005 i sag C-458/03, Parking Brixen. EF-domstolen har i disse afgørelser opstillet følgende betingelser for at anse en virksomhed som in house: 1) Ordregiveren skal 1 2 3 4 6. føre samme kontrol med virksomheden som med sine egne tjenestegrene, og 2) virksomheden skal udføre hovedparten af sin virksomhed sammen med den myndighed den ejes af.
5. Bektra-samarbejdet opfylder disse betingelser, således som de efter Klagenævnets opfattelse må forstås. VAFT har fuld kontrol over, hvad der foregår i Bektra-samarbejdet, idet alle beslutninger i styregruppen kræver enighed (betingelse 1), og Bektra-samarbejdet udfører sin virksomhed for de deltagende trafikselskaber (betingelse 2).
6. Som følge af det anførte finder Klagenævnet, at VAFT har kunnet indtræde i Bektra-samarbejdet uden forudgående udbud, hvorfor klagen over VAFT ikke tages til følge.
.....
K2. Klagen fra 2. Landsorganisationen i Danmark tages ikke til følge. | N-050907
Dansk Byggeri | 2 | S2-1.c.s1-impl | 2. Klagenævnet kan ikke tiltræde Bente Lykke Sørensens udtalelse om, at EUudbud ikke var nødvendigt, jf. herved EF-domstolens domme af 18. november 1999 i sag C-107/98, Teckal, og af 11. januar 2005 i sag C-26/03, Stadt Halle. Disse domme må forstås sådan, at en ordregiver, der er omfattet af udbudspligten, kun kan overlade en udbudspligtig ydelse til et selskab uden forudgående EU-udbud, hvis ordregiveren ejer og kontrollerer det pågældende selskab 100 %. Denne betingelse er ikke opfyldt i forholdet mellem indklagede og Entreprenørgården. | N-981021
Farum Industrirenovation | 2-4 | S2-1.a.p2&i
S2-1.c.s1-impl
S2-6-impl
S2-na [C3-17] | 2. Uanset »R98« efter dets tilblivelseshistorie utvivlsomt fik tillagt rettigheder af koncessionslignende karakter, og at disse kun kunne bringes til ophør ved udløb, opsigelse, eller ved ekspropriation, finder Klagenævnet, at det retlige grundlag for selskabets virke i hvert fald fra den 1. januar 1994 er så afgørende ændret, at de ydelser, selskabet præsterer er omfattet af Tjenesteydelsesdirektivet. Allerede som følge heraf burde indklagede have udbudt ydelserne afhentning og bortskaffelse af dagrenovation fra husholdninger og husholdningslignende affald fra erhvervsvirksomheder i EU–udbud.
3. For så vidt angår transport af erhvervsaffald og modtagelse af samme dog bortset fra I/S Amagerforbrændingen og I/S Vestforbrændingen, finder Klagenævnet, at disse ydelser er omfattet af Tjenesteydelsesdirektivet. Herved bemærkes, at Klagenævnet ikke finder, at der foreligger oplysninger, der kan føre til andet resultat.
4. Klagenævnet finder herefter, at indklagede ved at undlade udbud på de foran anførte områder har overtrådt Tjenesteydelsesdirektivet.
[Sagsfremstilingen: Erhvervsaffaldsregulativet giver i flere tilfælde ikke fri konkurrence ..... Brændbart affald må kun modtages af I/S Amagerforbrændingen og I/S Vestforbrændingen.
.....
Såfremt Klagenævnet ikke lægger til grund, at anvendelsen af I/S Vestforbrænding og I/S Amagerforbrænding ved bortskaffelsen af andet brændbart affald fra Københavns Kommune er lovlig, allerede fordi dette sker i henhold til en koncession og ikke ud fra en tjenesteydelseskontrakt, må overladelsen af denne affaldsbortskaffelse til de to interessentskaber anses for lovlig i medfør af eneretsreglen i Tjenesteydelsesdirektivets artikel 6.
.....
Sagsfremstillingen: Af forhandlingsprotokollen for Borgerrepræsentationen af 2. december 1993 fremgår det bl.a.:
»788/93. Fra magistraten var modtaget følgende skrivelse af 22. november 1993 om ændring af vedtægter for Renholdningsselskabet af 1898 (R98), herunder en udskillelse af R98´s ikke–koncessionerede aktiviteter i et særskilt holdingaktieselskab R98 Renoflex A/S, hvor kommunen tilbydes en aktiepost på 49 pct. af aktiekapitalen ..... Det fremgår af referatet, at de i arbejdsgruppen tilvejebragte oplysninger og antagne konklusioner blev forelagt Borgerrepræsentationen, der herefter tiltrådte Magistratens indstilling.] | N-961011
Madsen & LO | 3 | S2-na [C3-1.8.1] | 3. Selve selskabsdannelsen findes ikke udbudsudløsende. Beslutningen om at indgå hovedaftalerne med de to selskaber og at overlade ydelserne til disse findes efter en samlet vurdering - i hvert fald så længe kommunen har den bestemmende indflydelse i selskaberne - at være en divisionering af kommunens samlede dispositioner, der ikke kan sidestilles med et udbud af ydelser.
[Sagsfremstillingen: Sagen drejer sig om lovligheden af - uden EU-udbud - at beslutte oprettelsen af selskaberne Odense Renovationsselskab A/S og Odense Vandselskab A/S og til disse at overføre aktiver og retten til at forestå håndtering af henholdsvis affald og vandforsyning og spildevandsafledning.] |
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