| | 32004L0018: c3-1.9.2Body governed by public law    
| 32004L0018 - Classic (3rd generation) | Article 1.9.2 | A "body governed by public law" means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law. | | 32004L0017 - Utilities (3rd generation) | Article 2.1.a.2 | "A body governed by public law" means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
- having legal personality and
- financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; | | 31993L0037 - Works (2nd generation) | Article 1.b.2 | A 'body governed by public law' means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
- having legal personality, and
- financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; | | 31993L0036 - Goods (2nd generation) | Article 1.b.2 | 'A body governed by public law' means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
- having legal personality, and
- financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; | | 31992L0050 - Services (2nd generation) | Article 1.b.2 | Body governed by public law means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
- having legal personality and
- financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law. | | 31993L0038 - Utilities (2nd generation) | Article 1.1.2 | A body is considered to be governed by public law where it:
- is established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial nature,
- has legal personality, and
- is financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or is subject to management supervision by those bodies, or has an administrative, managerial or supervisory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law; | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.1=W-1.b.2 | A body governed by public law means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
- having legal personality, and
- financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law. | | 31977L0062 - Goods (1st generation) | Article 1.b.p2 | | ..... and the legal persons governed by public law or, in member states where the latter are unknown, bodies corresponding thereto ..... | | 31990L0531 - Utilities (1st generation) | Article 1.1.2 | A body is considered to be governed by public law where it:
- is established for the specific purpose of meeting needs in the general interest, not being of a commercial or industrial nature, and
- has legal personality, and
- is financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or is subject to management supervision by those bodies, or has an administrative, managerial or supervisory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law; |
Legislation concerning national procurement of works| DLB-1410/07 - First codification of Third law on National Procurement (NPL3C1) | Article 1.5.s4 | | Begrebet »offentligretlige organer« forstås i overensstemmelse med definitionen heraf i udbudsdirektivet og forsyningsvirksomhedsdirektivet. | | DL-338/05 - Third law on National Procurement (NPL3) | Article 1.5.s4 | | Begrebet »offentligretlige organer« forstås i overensstemmelse med definitionen heraf i udbudsdirektivet og forsyningsvirksomhedsdirektivet. | | DL-450/01 - Second law on National Procurement (NPL2) | Article 1.2.p1 | | Stk. 2. Ved offentlige bygge- og anlægsopgaver forstås opgaver, der udbydes af ordregivere omfattet af artikel 1, litra b, i Rådets direktiv 93/37/EØF af 14. juni 1993 med senere ændringer ..... |
Legislation concerning national procurement of supplies and services| DLB-1410/07 - First codification of Third law on National Procurement (NPL2C1) | Article 15b.6 | | 6) Offentligretlige organer:Organer som defineret i udbudsdirektivet og bilag III hertil. | | DL-572/07 - First amendment of Third law on National Procurement (NPL3A1) | Article 3.7=NPL3-15b.6 | 7. Efter § 15 indsættes som nyt afsnit:
.....
6) Offentligretlige organer:Organer som defineret i udbudsdirektivet og bilag III hertil. |
| Case | Pte | Ref | Text | C-393/06
Ing. Aigner | 34-48 | C3-1.9.2
U3-2.1.a | 34. By its second question, the referring court asks whether an entity such as Fernwärme Wien is to be regarded as a body governed by public law within the meaning of Directive 2004/17 or of Directive 2004/18.
35. In that regard, it should be borne in mind that, as is apparent from paragraph 5 of this judgment, the provisions of the second subparagraph of Article 2(1)(a) of Directive 2004/17 and the second subparagraph of Article 1(9) of Directive 2004/18 contain identical definitions of the concept of body governed by public law'.
36. It is clear from those provisions that a body governed by public law' is any body which, firstly, was established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, secondly, has legal personality and, thirdly, is financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law. In accordance with the case-law of the Court, those three conditions are cumulative (Case C¡237/99 Commission v France [2001] ECR I939, paragraph 40, and the case-law cited).
37. Furthermore, since the aim of the directives in relation to awarding public contracts is to avoid, inter alia, the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones, the concept of a body governed by public law' must be interpreted in functional terms (Case C337/06 Bayerischer Rundfunk and Others [2007] ECR I0000, paragraphs 36 and 37, and the case-law cited).
38. In the present case, it is common ground that the latter two criteria established by the rules set out in paragraph 36 of the present judgment are fulfilled, given that Fernwärme Wien has legal personality and that the City of Vienna wholly owns the share capital of that entity and monitors its economic and financial management. It remains to be considered whether the entity was established specifically to meet needs in the general interest, not having an industrial or commercial character.
39. With regard, firstly, to the purpose of the establishment of the entity in question and the nature of the needs met, it is appropriate to note that, as is apparent from the documents before the Court, Fernwärme Wien was established specifically for the purpose of supplying district heating to homes, public institutions, offices, undertakings etc. in the City of Vienna by means of the use of energy produced by the destruction of waste. At the hearing before the Court, it was stated that, at present, that heating system serves approximately 250 000 homes, numerous offices and industrial plants and, in practice, all public buildings. To provide heating for an urban area by means of an environmentally-friendly process constitutes an aim which is undeniably in the general interest. It cannot, therefore, be disputed that Fernwärme Wien was established specifically to meet needs in the general interest.
40. In that regard, it is immaterial that such needs are also met or can be met by private undertakings. It is important that they should be needs which, for reasons in the general interest, the State or a regional authority generally chooses to meet itself or over which it wishes to retain a decisive influence (see, to that effect, Case C360/96 BFI Holding [1998] ECR I6821, paragraphs 44, 47, 51 and 53, and Joined Cases C223/99 and C260/99 Agorà and Excelsior [2001] ECR I3605, paragraphs 37, 38 and 41).
41. Secondly, in order to ascertain whether the needs met by the entity in question in the main proceedings have a character other than industrial or commercial, account must be taken of all the relevant law and facts such as the circumstances prevailing at the time when the body concerned was established and the conditions under which it exercises its activity. In that regard, it is important to check, inter alia, whether the body in question carries on its activities in a situation of competition (Case C18/01 Korhonen [2003] ECR I5321, paragraphs 48 and 49).
42. As stated in paragraph 39 of the present judgment, Fernwärme Wien was established specifically for the purpose of supplying district heating in the City of Vienna. It is common ground that the pursuit of profit did not underlie its establishment. While it is not impossible that those activities may generate profits distributed in the form of dividends to shareholders of the entity, the making of such profits can never constitute its principal aim (see, to that effect, Korhonen , paragraph 54).
43. With regard, subsequently, to the relevant economic environment or, in other words, the relevant market which must be considered in order to ascertain whether the entity in question is exercising its activities in competitive conditions, account must be taken, as the Advocate General proposes in points 53 and 54 of his Opinion, having regard to the functional interpretation of the concept of a body governed by public law', of the sector for which Fernwärme Wien was created, that is to say the supply of district heating by means of the use of energy produced by the burning of waste.
44. It is clear from the order for reference that Fernwärme Wien enjoys a virtual monopoly in that sector, since the two other undertakings operating in that sector are of negligible size and accordingly cannot constitute true competitors. Furthermore, there is a considerable degree of autonomy in this sector, since it would be very difficult to replace the district heating system by another form of energy, since this would require large-scale conversion work. Finally, the City of Vienna attaches a particular importance to this heating system, not least for reasons of environmental considerations. Thus, having regard to the pressure of public opinion, it would not permit it to be withdrawn, even if that system were to operate at a loss.
45. Having regard to the various indications provided by the referring court and as the Advocate General observes in point 57 of his Opinion, Fernwärme Wien is currently the only undertaking capable of meeting such needs in the general interest in the sector under consideration, so that it might choose to be guided by considerations other than economic ones in the award of its contracts.
46. In the judgments in BFI Holding (paragraph 49) and Agorà and Excelsior (paragraph 38), the Court held that the existence of significant competition may be an indication in support of the conclusion that there is no need in the general interest, not having an industrial or commercial character. In the circumstances of the case in the main proceedings, it is clear from the reference for the preliminary ruling that the criterion requiring the existence of significant competition is far from fulfilled.
47. It must be borne in mind that it is immaterial whether, in addition to its duty to meet needs in the general interest, an entity is free to carry out other profit-making activities, provided that it continues to attend to the needs which it is specifically required to meet. The proportion of profit-making activities actually pursued by that entity as part of its activities as a whole is also irrelevant for its classification as a body governed by public law (see, to that effect, Mannesmann Anlagenbau Austria and Others , paragraph 25; Korhonen , paragraphs 57 and 58; and Case C373/00 Adolf Truley [2003] ECR I1931, paragraph 56).
48. In the light of the foregoing considerations, the answer to the second question must be that an entity such as Fernwärme Wien is to be regarded as a body governed by public law within the meaning of the second subparagraph of Article 2(1)(a) of Directive 2004/17 and the second subparagraph of Article 1(9) of Directive 2004/18. | C-393/06
Ing. Aigner | 49-59 | C3-1.2.a-impl
C3-1.8.1-impl
U3-1.2.a-impl
U3-1.7.1 | 49. By its third question, the referring court asks whether all contracts awarded by an entity which is a body governed by public law, within the meaning of Directive 2004/17 or Directive 2004/18, are to be subject to the rules of one or the other of those directives if, through effective precautions, a clear separation is possible between the activities carried out by that body to accomplish its task of meeting needs in the general interest and the activities which it carries out in competitive conditions, so that cross financing between the two types of activities can be excluded.
50. It should be borne in mind in that regard that the problem underlying that question was examined by the Court for the first time in the case which gave rise to the judgment in Mannesmann Anlagenbau Austria and Others relating to the interpretation of Directive 93/37 on public works contracts, and that the Court came to the conclusion, in paragraph 35 of that judgment, that all contracts, of whatever nature, entered into by a contracting authority were to be subject to the rules of that directive.
51. The Court reiterated that position, with regard to public service contracts, in the judgments in BFI Holding (paragraphs 55 and 56) and Korhonen (paragraphs 57 and 58) and, with regard to public supply contracts, in the judgment in Adolf Truley (paragraph 56). That position also applies to Directive 2004/18, which represents a recasting of the provisions of all the preceding directives on the award of public contracts which it follows (see, to that effect, Bayerischer Rundfunk , paragraph 30).
52. That conclusion is inescapable also in respect of entities which use an accounting system intended to make a clear internal separation between the activities carried out by them to accomplish their task of meeting needs in the general interest and activities which they carry out in competitive conditions.
53. As the Advocate General points out in points 64 and 65 of his Opinion, there must be serious doubts that, in reality, it is possible to establish such a separation between the different activities of one entity consisting of a single legal person which has a single system of assets and property and whose administrative and management decisions are taken in unitary fashion, even ignoring the many other practical obstacles with regard to reviewing before and after the event the total separation between the different spheres of activity of the entity concerned and the classification of the activity in question as belonging to a particular sphere.
54. Thus, having regard to the reasons of legal certainty, transparency and predictability which govern the implementation of procedures for all public procurement, the case-law of the Court set out in paragraphs 50 and 51 of the present judgment must be followed.
55. Nevertheless, as is apparent from paragraph 49 of the present judgment, the question posed by the referring court at the same time relates to Directives 2004/17 and 2004/18.
56. In that regard, it should be noted that, in the context of the examination of the second question referred for a preliminary ruling, it was held that an entity such as Fernwärme Wien is to be regarded as a body governed by public law within the meaning of Directive 2004/17 or of Directive 2004/18. Furthermore, in examining the first question referred for a preliminary ruling, the Court concluded that a contracting entity, within the meaning of Directive 2004/17, is required to apply the procedure laid down in that directive only for the award of contracts which relate to activities carried out by that entity in one or more of the sectors listed in Articles 3 to 7 thereof.
57. It is appropriate to state that, in accordance with the case-law of the Court, contracts awarded in the sphere of one of the activities expressly listed in Articles 3 to 7 of Directive 2004/17 and contracts which, although different in nature and thus capable normally, as such, of falling within the scope of Directive 2004/18, are used in the exercise of activities defined in Directive 2004/17 fall within the scope of the latter directive (see, to that effect, Strabag and Kostmann , paragraphs 41 and 42).
58. Consequently, the contracts awarded by an entity such as Fernwärme Wien are covered by the procedures laid down in Directive 2004/17 since they are connected with an activity which it carries out in the sectors listed in Articles 3 to 7 thereof. However, all other contracts awarded by such an entity in connection with the exercise of other activities are covered by the procedures laid down in Directive 2004/18.
59. The answer to the third question must therefore be that all contracts awarded by an entity which is a body governed by public law, within the meaning of Directive 2004/17 or Directive 2004/18, which relate to activities carried out by that entity in one or more of the sectors listed in Articles 3 to 7 of Directive 2004/17 must be subject to the procedures laid down in that directive. However, all other contracts awarded by such an entity in connection with the exercise of other activities are covered by the procedures laid down in Directive 2004/18. Each of these two directives applies without distinction between the activities carried out by that entity to accomplish its task of meeting needs in the general interest and activities which it carries out under competitive conditions, and even where there is an accounting system intended to make a clear internal separation between those activities in order to avoid cross-financing between those sectors. | C-337/06
Bayerischer Rundfunk | 32-50 | S2-1.b.1
S2-1.b.2
ECT-EffUtil | 32. By this question, the Court is requested to interpret the concept of financed, for the most part, by the State' or by another public body, contained in the first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50, in order to answer the question whether that condition is satisfied when the activities of public broadcasting bodies such as those involved in the main proceedings are financed for the most part by a fee charged, assessed and collected in accordance with rules such as those involved in the main proceedings.
33. It must first of all be pointed out that, as regards whether the financing is for the most part', it is common ground that, in accordance with the case-law of the Court, that condition is satisfied in this case, since more than one half of the income of the public broadcasting bodies in question comes from the fee at issue in the main proceedings (see, to that effect, Case C380/98 University of Cambridge [2000] ECR I8035, paragraph 30).
34. It must then be stated that the wording of the first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 contains no details as to the procedures for delivering the financing to which that provision relates. Thus, in particular, there is no requirement that the activity of the bodies in question should be directly financed by the State or by another public body failing which the condition attaching to that point is not satisfied. Examination of the financing procedures must therefore not be restricted to those put forward by the various interested parties in this case.
35. With a view to the interpretation of the concept of financed... by the State' or by other public bodies, it is appropriate to refer to the aim of the Community directives in relation to public contracts, as stated in the case-law of the Court.
36. In accordance with that case-law, the aim of the directives in relation to awarding public contracts is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (University of Cambridge , paragraph 17, and case-law there cited).
37. The Court has restated those objectives, adding that the concept of contracting authority', including a body governed by public law', must be interpreted, in the light of those objectives, in functional terms (Case C237/99 Commission v France [2001] ECR I939, paragraphs 42 and 43, and case-law there cited).
38. The Court has held that the purpose of coordinating at Community level the procedures for awarding public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (University of Cambridge , paragraph 16, and Commission v France , paragraph 41).
39. As regards specifically public service contracts, the Court has emphasised that same primary objective, namely the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible (see, to that effect, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I1, paragraphs 44 and 47).
40. A method of financing public broadcasting bodies such as that in the main proceedings must be assessed in the light of those objectives and in relation to those criteria, which implies that the concept of financed ... by the State' must also receive a functional interpretation.
41. It must first of all be stated that the fee which provides the greater part of the funding of the activities of the bodies in question has its origin in the State Treaty on broadcasting, in other words in a measure of the State. The fee is provided for and imposed by statute and is not the result of any contractual arrangement entered into by those bodies and the customers. Liability to pay that fee arises out of the mere fact of possession of a receiver and is not in consideration of actual use of the services provided by the bodies in question.
42. It must then be observed that the determination of the amount of the fee is not the product of any contractual relationship between the public broadcasting bodies in the main proceedings and the customers either. Under the State Treaty on the financing of broadcasting, the amount is determined by formal decision of the Parliaments and Governments of the Länder, adopted on the basis of a report drawn up by the KEF in relation to the financial requirements declared by those bodies themselves. The Parliaments and Governments of the Länder are free not to follow the recommendations of the KEF, while respecting the principle of the freedom of broadcasting, but on limited grounds, namely where the amount of the fee represents for the customers a financial burden which is disproportionate with regard to the general economic and social situation, and capable of affecting adversely their access to information (see judgment of the Bundesverfassungsgericht of 11 September 2007 BvR 2270/05, BvR 809/06 and BvR 830/06).
43. Even if the position were that the Parliaments and Governments of the Länder were obliged to follow without qualification the recommendations of the KEF, it would remain the case that this mechanism for fixing the amount of the fee was established by the State, which has thereby transferred public authority powers to a commission of experts.
44. As regards the procedures for the levying of the fee, it is clear from the State Treaty on the broadcasting fee that the latter is recovered by GEZ which, on behalf of the public broadcasting bodies, issues notices of liability to the charge, in other words by act of an official authority. Similarly, if payment is not made on time, notices of arrears are the subject of enforcement by administrative proceedings, and the public broadcasting organisation concerned, as the party entitled to payment, may send the request for enforcement assistance directly to the authority which has jurisdiction. Accordingly, in this respect the bodies in question enjoy the powers of a public authority.
45. The resources thus allocated to those bodies are paid without any specific consideration in return, within the meaning of the case-law of the Court (see, to that effect, University of Cambridge , paragraphs 23 to 25). Indeed, no contractual consideration is linked to those payments, since neither the liability to pay the fee nor its amount is the result of any agreement between the public broadcasting bodies and the customers, the latter being obliged to pay the fee provided only that they possess a receiver, irrespective of whether they use the service offered by those bodies. Accordingly, customers must pay the fee, even if they have never made use of the services of those bodies.
46. The argument of the applicants in the main proceedings that the determining factor cannot be that the fee is provided for in a provision of law, otherwise all the doctors, lawyers and architects established in the Federal Republic of Germany would be financed by the State' because the levels of their fees are fixed by the State, is ineffectual. Even though those levels are regulated by the State, the consumer always enters of his own free will into a contractual relationship with the members of those professions and always receives an actual service. In addition, the financing of the activities of members of those professions is neither ensured nor guaranteed by the State.
47. It must be observed, lastly, that, in the light of the functional approach referred to above, as the Commission of the European Communities rightly points out, the assessment made cannot vary according to whether the financial resources pass through the State budget, the State first collecting the fee and then making the fee income available to the public broadcasting bodies, or whether the State grants to those bodies the right to collect the fee themselves.
48. It must therefore be concluded that financing such as that at issue in the main proceedings, which is brought into being by a measure of the State, is guaranteed by the State and is secured by methods of charging and collection which fall within public authority powers, satisfies the condition of financing... by the State' for the purposes of application of the Community rules on the awarding of public contracts.
49. That method of indirect financing is sufficient for the condition on financing... by the State' laid down in the Community legislation to be satisfied and it is not necessary that the State itself establish or appoint a public or private body to the task of collection of the fee.
50. The answer to be given to the first question referred is therefore that the first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that there is financing, for the most part, by the State when the activities of public broadcasting bodies such as those in the main proceedings are for the most part financed by a fee payable by persons who possess a receiver, which is imposed, calculated and levied according to rules such as those in the main proceedings. | C-337/06
Bayerischer Rundfunk | 51-60 | S2-1.b.2 | 51. By its second question, the referring court asks whether the first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that, if a public broadcasting body is financed according to the procedures set out in the first question referred for a preliminary ruling, the condition of financing... by the State' requires the direct interference of the State or other public authorities when a contract such as that in the main proceedings is awarded by such a body.
52. For the purposes of answering that question, it must first be observed that there is no requirement in the wording of the provision under consideration that, when a particular public contract is being awarded, there be direct intervention by the State or by another public body before the condition of financing... by the State' can be satisfied.
53. As regards, secondly, the criterion of the dependence of a body on the public authorities, developed in the case-law of the Court as regards the three conditions to be found in the third indent of the second paragraph of Article 1(b) of Directive 92/50 (see, to that effect, Case C44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I73, paragraph 20), the referring court refers to the above mentioned approach of one school of thought in German case-law and academic writing, to the effect that dependence implies that the public authorities are able to have actual influence on the awarding of various contracts.
54. It must first be observed that the question whether the public broadcasting bodies in the main proceedings are dependent on the public authorities arises only in relation to the awarding of contracts which have no connection to performance of the defined public service remit of those bodies, as guaranteed by the German Basic Law, namely the creation and production of programme material. The contract at issue in the main proceedings does not fall within that particular function of those bodies.
55. It must then be stated that, in this case, as is clear from the considerations elaborated when examining the first question, the very existence of the public broadcasting bodies in question depends on the State. The criterion of the dependence of those bodies on the State is thereby satisfied, and it is not necessary for the public authorities to have any real influence on the various decisions of the bodies in question on the awarding of contracts.
56. That dependence in the broad sense does not exclude the risk, if the Community rules on the awarding of public contracts are not observed, that the public broadcasting bodies in the main proceedings may allow themselves to be guided by considerations other than economic, inter alia, by giving preference to national tenderers or candidates. Those bodies may take such an approach without breaching the requirements laid down by the German Basic Law, which does not prohibit it. As the referring court judiciously observes, the State's obligation of neutrality in relation to the creation of programme material by the bodies in question, as guaranteed by the German Basic Law and interpreted by the Bundesverfassungsgericht, does not require those bodies to be neutral in relation to awarding contracts. Such a risk is contrary to the objectives of the Community rules on the awarding of public contracts set out in paragraphs 38 and 39 of this judgment.
57. The referring court asks in addition what relevance, for the purposes of answering the second question, is to be attributed to the position adopted by the Court in paragraph 21 of University of Cambridge , to the effect that while the way in which a particular body is financed may reveal whether it is closely dependent on another contracting authority, that criterion is however not an absolute one. Not all payments made by a contracting authority have the effect of creating or reinforcing a specific relationship of subordination or dependency. Only payments which go to finance or support the activities of the body concerned without any specific consideration therefor may be described as public financing'.
58. In that regard it must be observed that, as regards the relationship of the bodies in question and the consumers, it is clear from paragraphs 23 to 25 of University of Cambridge , that it is possible to categorise as public financing' public outlays to which no consideration in return is contractually linked. As has been determined in paragraph 45 of this judgment, in this case no consideration in return is contractually linked to the resources allocated to the public broadcasting bodies in the main proceedings, since neither the liability to pay the fee nor the amount of the fee is the result of an agreement between those bodies and the consumers, whose obligation to pay the fee arises from the mere fact of their possession of a receiver, even if they never make use of the services of those bodies.
59. Equally, in this case the State obtains no specific consideration in return, given that, as the referring court judiciously states, the financing in the main proceedings serves to offset the obligations engendered by performance of the State's publicservice remit, which is to ensure that citizens receive objective information from a number of audiovisual sources. To that extent, the broadcasting bodies in the main proceedings are no different from any other public service which is subsidised by the State for the performance of its tasks in the public interest.
60. The answer to be given therefore to the second question referred is that the first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that, if the activities of public broadcasting bodies such as those in the main proceedings are financed according to the procedures set out when examining the first question, the condition of financing ... by the State' does not require that there be direct intervention by the State or by other public authorities in the awarding, by such bodies, of a contract such as that at issue in the main proceedings. | C-337/06
Bayerischer Rundfunk | 61-67 | S2-1.a.iv
S2-1.b.2 | 61. By its third question, the referring court asks whether Article 1(a)(iv) of Directive 92/50 must, in the light of the third indent of the second subparagraph of Article 1(b) of that directive, be interpreted as meaning that only public contracts relating to the services specified in the former provision are excluded from the scope of that directive.
62. Article 1(a)(iv) of Directive 92/50 provides that that directive does not apply to public contracts for services which fall within the essential function of public broadcasting bodies, namely the creation and production of programme material, for the cultural and social reasons alluded to in the eleventh recital of the preamble to Directive 92/50 and, more explicitly, in recital 25 of the preamble to Directive 2004/18, which render that application inappropriate.
63. That provision, as the Advocate General suggests in point 80 of his Opinion, reflects the same concern as that expressed in the German Basic Law, namely the guarantee that the public broadcasting bodies can accomplish their public service remit with complete independence and impartiality.
64. The provision in question being an exception to the principal objective of the Community rules on the awarding of public contracts, as stated in paragraph 39 of this judgment, namely freedom of movement of services and a market open to competition which is as wide as possible, it must be interpreted strictly. Accordingly, the only public contracts excluded from the scope of Directive 92/50 are those for the services specified in Article 1(a)(iv) of that directive. On the other hand, the Community rules apply in full to public contracts for services which have no connection to the activities which form part of the performance of the publicservice remit, in the proper sense, of the public broadcasting bodies.
65. Support for that approach is found in the above-mentioned recital 25 in the preamble to Directive 2004/18 which states, by way of guidance, in the penultimate sentence, that the exclusion from application of that directive should not apply to the supply of technical equipment necessary for the production, co-production and broadcasting of programmes.
66. However, it must be made clear that that those considerations apply only when what is at issue in a particular case is a contract awarded by a body to be regarded as a contracting authority' within the meaning of Article 1(b) of Directive 92/50.
67. The answer to be given therefore to the third question referred is that Article 1(a)(iv) of Directive 92/50 must be interpreted as meaning that only those public contracts which relate to the services specified in that provision are excluded from the scope of that directive. | C-340/04
Carbotermo | 43-44 | G2-1.b | 43. In response to that finding, the Italian Government states that the fact that AGESP must use a public tendering procedure to purchase the diesel oil in question shows that the Comune di Busto Arsizio, AGESP Holding and AGESP must be regarded as constituting together a body governed by public law' within the meaning of Article 1(b) of Directive 93/36 and required to conclude public supply contracts in accordance with the relevant Community and national legislation.
44. That argument cannot be accepted. First, the Comune di Busto Arsizio qualifies as a local authority and not a body governed by public law within the meaning of that provision. Second, the Comune di Busto Arsizio, AGESP Holding and AGESP each have distinct legal personalities. | C-84/03
Spain | 27-31 | G2-1.b
W2-1.b | 27. It must be observed that according to settled case-law the definition of body governed by public law', a concept of Community law which must be given an autonomous and uniform interpretation throughout the Community, is defined in functional terms exclusively under the three cumulative conditions in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Mannesmann Anlagenbau Austria and Others , paragraphs 20 and 21; Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 51 to 53; Case C-214/00 Commission v Spain [2003] ECR I-4667, paragraphs 52 and 53; and Case C-283/00 Commission v Spain [2003] ECR I-11697, paragraph 69).
28. It follows that in order to determine whether a private law body is to be classified as a body governed by public law it is only necessary to establish whether the body in question satisfies the three cumulative conditions laid down in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37, since an entity's private law status does not constitute a criterion for precluding it from being classified as a contracting authority for the purposes of those directives (Case C214/00 Commission v Spain , paragraphs 54, 55 and 60).
29. The Court has also stated that that interpretation does not amount to a disregard for the industrial or commercial character of the general interest needs which the body concerned satisfies, since that factor is necessarily taken into consideration in order to determine whether or not it satisfies the condition laid down in the first indent of the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Case C-283/00 Commission v Spain , paragraph 75).
30. Furthermore, that conclusion is not invalidated by the want of an express reference in Directives 93/36 and 93/37 to the specific category of public undertakings' which is used in Directive 93/38 (see, to that effect, Case C-283 Commission v Spain , paragraph 76).
31. Thus it follows from the foregoing that the Spanish legislation constitutes an incorrect transposition of the definition of contracting authority' in Article 1(b) of Directives 93/36 and 93/37, in so far as it excludes the bodies of private law from its scope, even though they may satisfy the conditions laid down in the first, second and third indents of the second subparagraph of Article 1(b) of those directives. | C-18/01
Korhonen | 31-33 | S2-1.b.2 | 31 The second subparagraph of Article 1(b) of Directive 92/50 defines a `body governed by public law' as any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, with legal personality and closely dependent, by its method of financing, management or supervision, on the State, regional or local authorities, or other bodies governed by public law.
32 As the Court has consistently held (see, inter alia, Case C-360/96 BFI Holding [1998] ECR I-6821, paragraph 29; Joined Cases C-223/99 and C-260/99 Agorà and Excelsior [2001] ECR I-3605, paragraph 26; and Adolf Truley, paragraph 34), the conditions set out in that provision are cumulative, so that in the absence of any one of them an entity may not be classified as a body governed by public law, and hence as a contracting authority within the meaning of Directive 92/50.
33 Since it is not in dispute that Taitotalo is owned and managed by a local authority and - at least from its date of entry in the register of commerce, 6 April 2000 - has legal personality, the national court's questions must be understood as relating solely to whether that company was established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character. | C-18/01
Korhonen | 34+40-59 | S2-1.b.2 | 34 By its first two questions, which should be examined together, the national court essentially asks whether a limited company established, owned and managed by a regional or local authority may be regarded as meeting a specific need in the general interest, not having an industrial or commercial character, where that company's activity consists in acquiring services with a view to the construction of premises intended for the exclusive use of private undertakings, and whether the assessment of whether that condition is satisfied would be different if the building project in question were intended to create favourable conditions on that local authority's territory for the exercise of business activities.
.....
40 The Court has already held that the second subparagraph of Article 1(b) of Directive 92/50 draws a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character (see, inter alia, BFI Holding, paragraph 36, and Agorà and Excelsior, paragraph 32). To give a useful answer to the questions put, it must first be ascertained whether activities such as those at issue in the main proceedings in fact meet needs in the general interest and then, if necessary, it must be determined whether such needs have an industrial or commercial character.
41 As regards the question whether the activity at issue in the main proceedings meets a need in the general interest, it appears from the order for reference that Taitotalo's principal activity consists in buying, selling and leasing properties and organising and supplying property maintenance services and other related services needed for the management of those properties. The operation carried out by Taitotalo in the main proceedings consists, more precisely, in acquiring design and construction services in connection with a building project relating to the construction of several office blocks and a multi-storey car park.
42 In that that operation follows from the town of Varkaus's decision to create a technological development centre on its territory, and Taitotalo's stated intention is to buy the land from the town once the site has been parcelled out, and to make the newly constructed buildings available to firms in the technology sector, its activity is indeed capable of meeting a need in the general interest.
43 In this respect, it may be recalled that, on being asked whether a body whose objects were to carry on and facilitate any activity concerned with the organisation of trade fairs, exhibitions and conferences could be regarded as a body governed by public law within the meaning of Article 1(b) of Directive 92/50, the Court held that activities relating to the organisation of such events meet needs in the general interest, in that an organiser of those events, in bringing together manufacturers and traders in one geographical location, is not acting solely in the individual interest of those manufacturers and traders, who are thereby afforded an opportunity to promote their goods and merchandise, but is also providing consumers who attend the events with information that enables them to make choices in optimum conditions. The resulting stimulus to trade may be considered to fall within the general interest (see Agorà and Excelsior, paragraphs 33 and 34).
44 Similar considerations may be put forward mutatis mutandis with respect to the activity at issue in the main proceedings, in that it is undeniable that, in acquiring design and construction services in connection with a building project relating to the construction of office blocks, Taitotalo is not acting solely in the individual interest of the undertakings directly concerned by that project but also in that of the town of Varkaus.
45 Activities such as those carried on by Taitotalo in the case in the main proceedings may be regarded as meeting needs in the general interest, in that they are likely to give a stimulus to trade and the economic and social development of the local authority concerned, since the location of undertakings on the territory of a municipality often has favourable repercussions for that municipality in terms of creation of jobs, increase of tax revenue and improvement of the supply and demand of goods and services.
46 A more difficult question, on the other hand, is whether such needs in the general interest have a character which is not industrial or commercial. While the Finnish Government submits that those needs have no industrial or commercial character, in that Taitotalo aims not so much to make a profit as to create favourable conditions for the location of undertakings on the territory of the town of Varkaus, Taitotalo puts forward the contrary argument, on the ground that it provides services precisely for commercial undertakings and that the financing of the building project in question is borne essentially by the private sector.
47 According to settled case-law, needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives relating to the coordination of procedures for the award of public contracts are generally needs which are satisfied otherwise than by the availability of goods and services in the market place and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see, inter alia, BFI Holding, paragraphs 50 and 51, Agorà and Excelsior, paragraph 37, and Adolf Truley, paragraph 50).
48 In the present case, it cannot be excluded that the acquisition of services intended to promote the location of private undertakings on the territory of a particular local authority may, for the reasons referred to in paragraph 45 above, be regarded as meeting a need in the general interest whose character is not industrial or commercial. In assessing whether or not such a need in the general interest is present, account must be taken of all the relevant legal and factual elements, such as the circumstances prevailing at the time when the body concerned was established and the conditions under which it exercises its activity (see, to that effect, Adolf Truley, paragraph 66).
49 In particular, it must be ascertained whether the body in question carries on its activities in a situation of competition, since the existence of such competition may, as the Court has previously held, be an indication that a need in the general interest has an industrial or commercial character (see, to that effect, BFI Holding, paragraphs 48 and 49).
50 However, it also follows from the wording of that judgment that the existence of significant competition does not of itself permit the conclusion that there is no need in the general interest not having an industrial or commercial character (see Adolf Truley, paragraph 61). The same applies to the fact that the body in question aims specifically to meet the needs of commercial undertakings. Other factors must be taken into account before reaching such a conclusion, in particular the question of the conditions in which the body in question carries on its activities.
51 If the body operates in normal market conditions, aims to make a profit, and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims to meet are not of an industrial or commercial nature. In such a case, the application of the Community directives relating to the coordination of procedures for the award of public contracts would not be necessary, moreover, because a body acting for profit and itself bearing the risks associated with its activity will not normally become involved in an award procedure on conditions which are not economically justified.
52 According to settled case-law, the purpose of those directives is to avert both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by other than economic considerations (see, in particular, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 17; Case C-470/99 Universale-Bau and Others [2002] ECR I-0000, paragraph 52; and Adolf Truley, paragraph 42).
53 In reply to a written question put by the Court, the Finnish Government stated at the hearing that although, from a legal point of view, there are few differences between companies such as Taitotalo and limited companies owned by private operators, in that they bear the same economic risks as the latter and may similarly be declared bankrupt, the regional and local authorities to which they belong rarely allow such a thing to happen and will, if appropriate, recapitalise those companies so that they can continue to look after the tasks for which they were established, essentially the improvement of the general conditions for the pursuit of economic activity in the local authority area in question.
54 In reply to a question put by the Court at the hearing, the Finnish Government further stated that, while it is not impossible that the activities of companies such as Taitotalo may generate profits, the making of such profits can never constitute the principal aim of such companies, since under Finnish law they must always aim primarily to promote the general interest of the inhabitants of the local authority area concerned.
55 In such conditions, and having regard to the fact mentioned by the national court that Taitotalo received public funding for carrying out the building project at issue in the main proceedings, it appears probable that an activity such as that pursued by Taitotalo in this case meets a need in the general interest not having an industrial or commercial character.
56 It is nevertheless for the national court, the only one to have detailed knowledge of the facts of the case, to assess the circumstances which prevailed when that body was set up and the conditions in which it carries on its activity, including in particular whether it aims at making a profit and bears the risks associated with its activity.
57 As to the Commission's observation that it cannot be excluded that the activity at issue in the main proceedings represents only a minor part of Taitotalo's activities, that fact, even were it to be established, would be of no relevance to the outcome of the main proceedings, in so far as that company continues to look after needs in the general interest.
58 According to settled case-law, the status of a body governed by public law is not dependent on the relative importance, within that body's activity, of the meeting of needs in the general interest not having an industrial or commercial character (see Mannesmann Anlagenbau Austria and Others, paragraphs 25, 26 and 31; BFI Holding, paragraphs 55 and 56; and Adolf Truley, paragraph 56).
59 In the light of the above considerations, the answer to the first and second questions must be that a limited company established, owned and managed by a regional or local authority meets a need in the general interest, within the meaning of the second subparagraph of Article 1(b) of Directive 92/50, where it acquires services with a view to promoting the development of industrial or commercial activities on the territory of that regional or local authority. To determine whether that need has no industrial or commercial character, the national court must assess the circumstances which prevailed when that company was set up and the conditions in which it carries on its activity, taking account in particular of the fact that it does not aim primarily at making a profit, the fact that it does not bear the risks associated with the activity, and any public financing of the activity in question. | C-18/01
Korhonen | 60-64 | S2-1.b.2 | 60 By its third question, the national court essentially asks whether the fact that the offices to be constructed are leased only to a single undertaking is capable of calling into question the lessor's status of a body governed by public law.
61 It suffices to state that it is clear from the answer to the first two questions that such a circumstance does not in principle prevent the lessor of the offices to be built from being classified as a body governed by public law, since, as the Advocate General observes in point 92 of his Opinion, the general interest is not measured by the number of direct users of an activity or service.
62 First, it is undeniable that the location of a single undertaking on the territory of a regional or local authority may likewise give a stimulus to trade and bring about favourable economic and social repercussions for that local authority and for all its inhabitants, since the location of that undertaking may inter alia act as a catalyst and stimulate the location of other undertakings in the region concerned.
63 Second, that interpretation is also consistent with the purpose of Directive 92/50, which, according to the 20th recital in its preamble, is intended inter alia to eliminate practices that restrict competition in general and participation in contracts by other Member States' nationals in particular. As the Finnish Government has observed, to accept that a body may fall outside the scope of that directive solely because the activity it carries on benefits one company only would amount to disregarding the very purpose of the directive, since, to avoid the rules it lays down, it would suffice for a company such as Taitotalo to maintain that the premises to be constructed were intended to be let to a single undertaking, which could then, as soon as the transaction were completed, transfer the premises to other undertakings.
64 In the light of the above considerations, the answer to the third question must therefore be that the fact that the premises to be constructed are leased only to a single undertaking is not capable of calling into question the lessor's status of a body governed by public law, where it is shown that the lessor meets a need in the general interest not having an industrial or commercial character. | C-373/00
Truley | 33-45 | G2-1.b | 33 First of all, it should be noted that Directive 93/36 does not define the term `needs in the general interest'.
34 The second subparagraph of Article 1(b) of that directive merely states that such needs must not have an industrial or commercial character, while it is clear from an overall reading of that article that meeting needs in the general interest which are not industrial or commercial in character is a necessary, but not sufficient, condition for designating a body as a `body governed by public law' and, therefore, a `contracting authority' within the meaning of Directive 93/36. In order to be covered by that directive, the body must also have legal personality and depend heavily, for its financing, management or supervision, on the State, regional or local authorities or other bodies governed by public law (see, with respect to the cumulative nature of the criteria laid down, in the same terms, in the second subparagraph of Article 1(b) 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) and the second subparagraph of Article 1(b) of Directive 93/37, Mannesmann Anlagenanbau Austria, paragraphs 21 and 38, BFI Holding, paragraph 29, Case C-237/99 Commission v France [2001] ECR I-939, paragraph 40, and Joined Cases C-223/99 and C-260/99 Agorà and Excelsior [2001] ECR I-3605, paragraph 26).
35 According to settled case-law, the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, inter alia, Ekro, cited above, paragraph 11, Case C-287/98 Linster and Others [2000] ECR I-6917, paragraph 43, and Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 26).
36 In the present case, it is common ground that the second subparagraph of Article 1(b) of Directive 93/36 makes no express reference to the law of the Member States, with the result that the abovementioned terms must be given an autonomous and uniform interpretation throughout the Community.
37 That finding is not invalidated by the fact that the third subparagraph of Article 1(b) of Directive 93/36 refers to Annex I to Directive 93/37, which lists the bodies and categories of such bodies governed by public law which, in each Member State, fulfil the criteria laid down in the second subparagraph of Article 1(b) of Directive 93/36.
38 The Court notes, first, that that annex itself contains no definition of the term `needs in the general interest' featuring, in particular, in Article 1(b) of Directive 93/36 and in Article 1(b) of Directive 93/37.
39 Second, while it is clear from the wording of Article 1(b) of Directive 93/36 that the list in Annex I to Directive 93/37 is intended to be as complete as possible and may be revised pursuant to the procedure provided for in Article 35 of Directive 93/37, that list is in no way exhaustive (see, inter alia, BFI Holding, paragraph 50, and Agorà and Excelsior, paragraph 36) as its accuracy varies considerably from one Member State to another.
40 It follows that the term `needs in the general interest' in Article 1(b) of Directive 93/36 is a Community-law concept and must be interpreted in the light of the context of that article and the purpose of that directive.
41 The Court has already ruled on several occasions that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, in particular, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16, Case C-237/99 Commission v France, cited above, paragraph 41, Case C-92/00 HI [2002] ECR I-5553, paragraph 43, and Case C-470/99 Universale-Bau and Others [2002] ECR I-0000, paragraph 51).
42 Furthermore, settled case-law also shows that the purpose of the Community directives coordinating procedures for the award of public contracts is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (see, in particular, University of Cambridge, cited above, paragraph 17, Commission v France, cited above, paragraph 42, and Universale-Bau, cited above, paragraph 52).
43 Given the double objective of introducing competition and transparency, the concept of a body governed by public law must be interpreted as having a broad meaning.
44 Accordingly, if a specific body is not listed in Annex I to Directive 93/37, its legal and factual situation must be determined in each individual case in order to assess whether or not it meets a need in the general interest.
45 In light of the foregoing, the answer to the first limb of the first question must be that the term `needs in the general interest' in the second subparagraph of Article 1(b) of Directive 93/36 is an autonomous concept of Community law. | C-373/00
Truley | 50-57 | G2-1.b | 50 The Court has already held that needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives coordinating the award of public contracts are generally needs which are satisfied otherwise than by the availability of goods and services in the marketplace and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see BFI Holding, paragraphs 50 and 51, and Agorà and Excelsior, paragraph 37).
51 It cannot be disputed that the activities of funeral undertakers may indeed be regarded as meeting a need in the general interest.
52 First, such activities are linked to public policy in so far as the State has a clear interest in exercising close control over the issue of certificates such as birth and death certificates.
53 Second, the State may be justified in retaining influence over those activities and in taking measures such as those provided for in Paragraph 10(1) of the WLBG on manifest grounds of hygiene and public health where funerals have not been arranged within a certain period after the death certificate has been issued. The very existence of such a provision therefore constitutes evidence that the activities in question meet a need in the general interest.
54 In that context, it is, inter alia, appropriate to reject the interpretation advocated by the defendant in the main proceedings that, in contrast to funeral services `in the broad sense of the term' such as the placing of death notices, the placing of the deceased in the coffin or the transport of the deceased, only the burial or cremation of the body and the management of cemeteries and columbaria - classified as funeral services `in the narrow sense of the term' - are covered by the concept of needs in the general interest. Such a distinction is artificial as all or most of those services are normally provided by the same undertaking or public authority.
55 Furthermore, as the Advocate General has pointed out in paragraph 68 of his Opinion, funeral services are governed by a single law of the Land of Vienna, namely the WLBG. Paragraph 33(4) of that law expressly provides that `the employees of the legal entity or the employees of the undertaking appointed by the legal entity shall carry out the funeral ceremony... , transport the body or ashes to the grave ... They shall also open and close all graves, lower the body or ashes and carry out exhumations...'.
56 In any event, even if funeral services `in the narrow sense of the term' constitute only a relatively unimportant part of the services provided by a funeral undertaker, that fact is irrelevant since that undertaking continues to meet needs in the general interest. According to settled case-law, the status of a body governed by public law is not dependent on the relative importance, within its business as a whole, of the meeting of needs in the general interest not having an industrial or commercial character (see Mannesmann Anlagenanbau Austria, paragraphs 25, 26 and 31, and BFI Holding, paragraphs 55 and 56).
57 In light of the foregoing, the answer to the second limb of the first question must therefore be that the activities of funeral undertakers may meet a need in the general interest. The fact that a regional or local authority is legally obliged to arrange funerals - and, where necessary, to bear the costs of those funerals - where they have not been arranged within a certain period after a death certificate has been issued constitutes evidence that there is such a need in the general interest. | C-373/00
Truley | 59-66 | G2-1.b | 59 In that regard, it is sufficient to observe that, faced with a similar question, the Court held, in paragraph 47 of BFI Holding, that the absence of competition is not a condition which must necessarily be taken into account in defining a body governed by public law. The requirement that there should be no private undertakings capable of meeting the needs for which the body financed by the State, regional or local authorities or other bodies governed by public law was set up would be liable to render meaningless the term `body governed by public law' used in Article 1(b) of Directive 93/36 (see, to that effect, BFI Holding, paragraph 44).
60 However, the Court stated, in paragraphs 48 and 49 of that judgment, that the existence of competition is not entirely irrelevant to the question whether a need in the general interest is other than industrial or commercial. The existence of significant competition, and in particular the fact that the entity concerned is faced with competition in the marketplace, may be indicative of the absence of a need in the general interest not having an industrial or commercial character.
61 It follows from the same wording used in the judgment in BFI Holding that, although not entirely irrelevant, the existence of significant competition does not, of itself, permit the conclusion that there is no need in the general interest not having an industrial or commercial character.
62 In the present case, it is common ground that the activity of funeral undertaker is not reserved in Austria to specific legal persons and that the exercise of that activity is not, in principle, subject to any territorial restriction.
63 In contrast, it is clear from both the order for reference and the observations submitted to the Court that the exercise of that activity is subject to the grant of prior authorisation, which is dependent on the existence of a need in the general interest and on the provisions adopted by the municipalities in relation to funerals, and that the First Minister of the Land has competence to fix maximum prices for funeral services either for the entire Land or by administrative unit or municipality.
64 Furthermore, under Paragraph 10(1) of the WLBG, the City of Vienna is obliged to bear the costs of funerals where they have not been arranged by third parties or are not covered by the estate of the deceased.
65 That being so, the national court must, for the purpose of determining the exact nature of the needs met by Bestattung Wien, analyse all the legal and factual circumstances governing the activity of that company, as described in paragraphs 62 to 64 of the present judgment, the conditions of the separation from Wiener Stadtwerke and the transfer of the activities of Wiener Bestattung to Bestattung Wien and the terms of the exclusivity agreement which, according to the applicant in the main proceedings, links Bestattung Wien to the City of Vienna.
66 In light of the foregoing, the answer to the second question must be that the existence of significant competition does not, of itself, allow the conclusion to be drawn that there is no need in the general interest, not having an industrial or commercial character. The national court must assess whether or not there is such a need, taking account of all the relevant legal and factual circumstances, such as those prevailing at the time of establishment of the body concerned and the conditions under which it exercises its activity. | C-373/00
Truley | 68-74 | G2-1.b | 68 In that regard, suffice it to note that, according to the settled case-law of the Court (see, inter alia, University of Cambridge, paragraph 20, and Commission v France, paragraph 44), each of the alternative conditions set out in the third indent of the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37 reflects the close dependency of a body on the State, regional or local authorities or other bodies governed by public law.
69 More specifically, as regards the criterion of management supervision, the Court has held that that supervision must give rise to dependence on the public authorities equivalent to that which exists where one of the other alternative criteria is fulfilled, namely where the body in question is financed, for the most part, by the public authorities or where the latter appoint more than half of the members of its administrative, managerial or supervisory organs, enabling the public authorities to influence their decisions in relation to public contracts (see Commission v France, paragraphs 48 and 49).
70 In the light of that case-law, the criterion of managerial supervision cannot be regarded as being satisfied in the case of mere review since, by definition, such supervision does not enable the public authorities to influence the decisions of the body in question in relation to public contracts.
71 However, as the Advocate General has pointed out in paragraphs 109 to 114 of his Opinion, the evidence supplied by the national court suggests that, in the present case, the supervision of Bestattung Wien's activities by the City of Vienna largely exceeds that of a mere review.
72 First, Bestattung Wien is, pursuant to Paragraph 73 of the WStV, subject to direct supervision by the City of Vienna as a result of its ownership by a company, WSH, which is wholly owned by that municipality.
73 Second, it is also apparent from the order for reference that Paragraph 10.3 of the shareholders' agreement governing Bestattung Wien expressly provides that the Kontrollamt is authorised to examine not only the annual accounts of the company but also its `conduct from the point of view of proper accounting, regularity, economy, efficiency and expediency'. That paragraph of the shareholders' agreement governing Bestattung Wien also authorises the Kontrollamt to inspect the company's business premises and facilities and to report the results of those inspections to the competent bodies and to the company shareholders and the City of Vienna. Such powers therefore enable the Kontrollamt actively to control the management of that company.
74 In light of the foregoing, the answer to the third question must be that a mere review does not satisfy the criterion of management supervision in the third indent of the second subparagraph of Article 1(b) of Directive 93/36. That criterion is, however, satisfied where the public authorities supervise not only the annual accounts of the body concerned but also its conduct from the point of view of proper accounting, regularity, economy, efficiency and expediency and where those public authorities are authorised to inspect the business premises and facilities of that body and to report the results of those inspections to a regional authority which holds, through another company, all the shares in the body in question. | C-283/00
Spain | 69-96 | W2-1.b.2 | 69 A preliminary point to be noted is that, according to settled case-law, in order to be defined as a body governed by public law within the meaning of the second paragraph of Article 1(b) of the Directive an entity must satisfy the three cumulative conditions set out therein, requiring it to be a body established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, to possess legal personality and to be closely dependent on the State, regional or local authorities or other bodies governed by public law (Mannesmann Anlagenbau Austria and Others, paragraphs 20 and 21, and Case C-214/00 Commission v Spain [2003] ECR I-0000, paragraph 52).
70 In the circumstances of this case, although the parties agree that SIEPSA satisfies the conditions of the second and third indents of the second paragraph of Article 1(b) of the Directive, they differ as to whether or not the needs in the general interest to meet which SIEPSA was specifically created are commercial in character.
71 In Commission v Spain the Court rejected the Spanish Government's arguments based on the fact that, under the Spanish legislation applicable to the case, viz. Article 1(3) of Law No 13/1995 read in conjunction with the sixth provision supplementing that Law, commercial companies under public control such as SIEPSA are excluded from the ambit ratione personæ of both the Spanish rules or the Community rules on public procurement.
72 More specifically, in order to determine whether that exclusion constitutes correct transposition of the concept of `contracting authority' employed in Article 1(1) of Directive 89/665, the Court, considering that the ambit ratione personæ of that directive coincided with that of the Directive, referred to the scope of the concept of `body governed by public law' employed in the second paragraph of Article 1(b) of the Directive (Commission v Spain, paragraphs 48, 50 and 51).
73 In that context the Court noted that, in accordance with established case-law, in light of the dual purpose of opening up competition and of transparency pursued by the Directive, that concept must be given an interpretation as functional as it is broad (Commission v Spain, paragraph 53).
74 It is from that point of view that the Court has held that, following settled case-law, for the purposes of settling the issue of the classification of an entity governed by public law within the meaning of the second paragraph of Article 1(b) of the Directive, it is necessary to establish only whether or not the body concerned fulfils the three conditions set out in that provision, for that body's status as a body governed by private law does not constitute a criterion capable of excluding it from being classified as a contracting authority for the purposes of the Directive (Commission v Spain, paragraphs 54 and 55).
75 In addition, the Court has stated that that interpretation, the only one capable of maintaining the full effectiveness of the Directive, does not disregard the industrial or commercial character of the general-interest needs which the body concerned is intended to meet, for that aspect is necessarily taken into consideration for the purpose of determining whether or not that body satisfies the condition laid down in the first indent of the second paragraph of Article 1(b) of the Directive (Commission v Spain, paragraphs 56 and 58).
76 Nor is that conclusion invalidated by the want of an express reference in the Directive to the specific category of `public undertakings' which is, however, used in Directive 93/38. As the Commission has correctly observed, that last directive was adopted for the purpose of extending the application of the Community rules regulating public procurement to the water, energy, transport and telecommunications sectors which were not covered by other directives. From that point of view, by employing the concepts of `public authorities', on the one hand, and `public undertakings', on the other, the Community legislature adopted a functional approach similar to that adopted in Directives 92/50, 93/36 and 93/37. It was thus able to ensure that all the contracting entities operating in the sectors regulated by Directive 93/38 were included in its ambit ratione personæ, on condition that they satisfied certain criteria, their legal form and the rules under which they were formed being in this respect immaterial.
77 With regard on the other hand to the relevance of the Spanish Government's argument that SIEPSA does not fall within any of the categories of Spanish bodies governed by public law listed in Annex I to the Directive, the Court has held in Case C-373/00 Adolf Truley [2003] ECR I-0000, paragraph 39, that that list is in no way exhaustive, as its accuracy varies considerably from one Member State to another. The Court concluded therefrom that, if a specific body does not appear in that list, its legal and factual situation must be determined in each individual case in order to assess whether or not it meets a need in the general interest (Adolf Truley, paragraph 44).
78 Next, with more particular regard to the concept of `needs in the general interest, not having an industrial or commercial character' appearing in the first indent of the second paragraph of Article 1(b) of the Directive, the Court has already had occasion to clarify its purport in the context of various Community directives on the coordination of procedures for the award of public procurement contracts.
79 The Court has thus held that concept is one of Community law and must accordingly be given an autonomous and uniform interpretation throughout the Community, the search for which must take account of the background to the provision in which it appears and of the purpose of the rules in question (see, to that effect, Adolf Truley, paragraphs 36, 40 and 45). 80 According to settled case-law, needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives coordinating the award of public contracts are generally needs which are satisfied otherwise than by the supply of goods and services in the marketplace and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see, inter alia, Adolf Truley, paragraph 50, and Case C-18/01 Korhonen [2003] ECR I-0000, paragraph 47).
81 The case-law makes it equally clear that in determining whether or not there exists a need in the general interest not having an industrial or commercial character account must be taken of relevant legal and factual circumstances, such as those prevailing when the body concerned was formed and the conditions in which it carries on its activity, including, inter alia, lack of competition on the market, the fact that its primary aim is not the making of profits, the fact that it does not bear the risks associated with the activity, and any public financing of the activity in question (Adolf Truley, paragraph 66, and Korhonen, paragraphs 48 and 59).
82 As a matter of fact, as the Court found in Korhonen, paragraph 51, if the body operates in normal market conditions, aims at making a profit and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims at meeting are not of an industrial or commercial nature.
83 It is therefore in light of the conditions defined in the case-law that the question whether or not the needs in the general interest that SIEPSA is designed to meet are other than industrial or commercial in character must be considered.
84 It is common ground that SIEPSA was established for the specific purpose of putting into effect, alone, the programmes and actions provided for in the plan for paying off the costs of and establishing prisons for the purpose of implementing the Spanish State's prison policy. To that end, as its statutes show, it carries on all activities which prove necessary in order to construct, manage or sell that State's prison assets.
85 The needs in the general interest which SIEPSA is responsible for meeting being, therefore, a necessary condition of the exercise of the State's penal powers they are intrinsically linked to public order.
86 That intrinsic link is to be seen in particular in the decisive influence wielded by the State over the carrying through of the tasks entrusted to SIEPSA. It is not in fact disputed that the latter puts into effect a plan for paying off the costs of and establishing prisons approved by the Council of Ministers and that it carries out its activities in accordance with directives issued by the public authorities.
87 What is more, imposition of criminal penalties being one of the rights and powers of the State, there is no market for the goods and services offered by SIEPSA in the planning and establishment of prisons. As the Commission has rightly argued, activities such as paying off the costs of and establishment of prisons, which are among SIEPSA's primary objectives, are not subject to market competition. That company cannot, therefore, be regarded as a body which offers goods or services on a free market in competition with other economic agents.
88 As to the argument which the Spanish Government bases on the fact that SIEPSA carries on its activities for profit, it is enough to state that, even if SIEPSA's activities do generate profits, it would appear inconceivable that the pursuit of such profit should be in itself the company's chief aim.
89 It is clear from that company's statutes that activities such as the acquisition of buildings to be fitted out as new prisons, the development and performance of planning and building works or the sale of disused facilities are simply the means it employs in order to attain its main objective, which is to contribute to the implementation of State prison policy.
90 That conclusion is confirmed by the fact that, as the Commission has noted without being contradicted by the Spanish Government, SIEPSA recorded large financial losses for the years 1997 and 1998.
91 It must be added that, regardless of the question whether or not there is any official mechanism for offsetting any losses made by SIEPSA, it seems unlikely that it itself should have to bear the financial risks bound up with its activity. In fact, having regard to the fact that the performance of that company's duties is a fundamental constituent of the Spanish State's prison policy, it seems likely that that State, being the sole shareholder, would take all necessary measures to prevent the compulsory liquidation of SIEPSA.
92 In those circumstances, it is possible that in a procedure for the award of public contracts SIEPSA should allow itself to be guided by other than purely economic considerations. It is precisely in order to guard against such a possibility that it is essential to apply the Community directives on public contracts (see, to this effect, inter alia, Adolf Truley, paragraph 42, and Korhonen, paragraphs 51 and 52).
93 Having regard to all the legal and factual matters governing SIEPSA's activity, as set down in paragraphs 84 to 92 above, it must be concluded that the needs in the general interest to meet which the company was specifically established possess a character which is other than industrial or commercial.
94 It follows that a body such as SIEPSA must be treated as a body governed by public law for the purposes of the second paragraph of Article 1(b) of the Directive and, therefore, as a contracting authority for the purposes of the first paragraph thereof.
95 Consequently, the Directive is applicable to the procedures for the award of public works contracts conducted by that company.
96 Having regard to all the foregoing considerations, it must be declared that, by failing to comply with all the provisions of the Directive in connection with the call for tenders for the execution of works for the Centro Educativo Penitenciario Experimental de Segovia issued by the Sociedad Estatal de Infraestruturas y Equipamientos Penitenciarios S.A., a company falling within the definition of a contracting authority for the purposes of Article 1(b) of the Directive, the Kingdom of Spain has failed to fulfil its obligations under that directive. | C-214/00
Spain | 52-55 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 52 The Court has already stated, in connection with the second subparagraph of Article 1(b) of Directive 93/37, that, in order to be defined as a body governed by public law within the meaning of that provision, an entity must satisfy the three cumulative conditions set out therein, according to which it must be a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law (Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraphs 20 and 21).
53 Moreover, the Court has repeatedly held that, in the light of the dual objective of opening up competition and transparency pursued by the directives on the coordination of the procedures for the award of public contracts, the term `contracting authority' must be interpreted in functional terms (see, in particular, Case C-237/99 Commission v France [2001] ECR I-939, paragraphs 41 to 43, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 51 to 53). The Court has also stated that, in the light of that dual purpose, the term `body governed by public law' must be interpreted broadly (Case C-373/00 Adolf Truley [2003] ECR-1931, paragraph 43).
54 It is from that point of view that the Court, for the purposes of settling the question whether various private law entities could be classified as bodies governed by public law, has proceeded in accordance with settled case-law and merely ascertained whether those entities fulfilled the three cumulative conditions set out in the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37, considering that the method in which the entity concerned has been set up was irrelevant in that regard (see to this effect, in particular, Mannesmann Anglagenbau Austria and Others, cited above, paragraphs 6 and 29; Case C-360/96 BFI Holding [1998] ECR I-6821, paragraphs 61 and 62; and Commission v France, cited above, paragraphs 50 and 60).
55 It is apparent from the rules thus identified in the case-law of the Court that an entity's private law status does not constitute a criterion for precluding it from being classified as a contracting authority within the meaning of Article 1(b) of Directives 92/50, 93/36 and 93/37 and, accordingly, of Article 1(1) of Directive 89/665. | C-470/99
Universale-Bau | 50-63 | W2-1.b.2 | 50 The Court has already had occasion to clarify the scope of the term `body governed by public law' in Article 1(b) of Directive 93/37, in the light, in particular, of the purpose of that directive.
51 Thus the Court has held that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, in particular, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16, and Case C-237/99 Commission v France [2001] ECR I-939, paragraph 41).
52 It has deduced therefrom that the aim of Directive 93/37 is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (see, in particular, both cases cited above, University of Cambridge, paragraph 17, and Commission v France, paragraph 42).
53 The Court has therefore held that it is in the light of those objectives that the concept of `body governed by public law' in the second subparagraph of Article 1(b) of Directive 93/37 must be interpreted in functional terms (see, in particular, Commission v France, cited above, paragraph 43).
54 Thus, at paragraph 26 of the judgment in Mannesmann Anlagenbau Austria and Others, cited above, in relation to the treatment of an entity which had been established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, but which also carried on commercial activities, the Court held that the condition laid down in the first indent of the second subparagraph of Article 1(b) of Directive 93/37 does not entail that the body concerned may be entrusted only with meeting needs in the general interest, not having an industrial or commercial character.
55 In particular, as is clear from paragraph 25 of the judgment in Mannesmann Anlagenbau Austria and Others, cited above, the Court has held that it is immaterial that, in addition to the specific task of meeting needs in the general interest, the entity concerned is free to carry out other activities, but, on the other hand, decided that it is a critical factor that it should continue to attend to the needs which it is specifically required to meet.
56 It follows therefrom that, for the purposes of deciding whether a body satisfies the condition set out in the first indent of the second subparagraph of Article 1(b) of Directive 93/37, it is necessary to consider the activities which it actually carries on.
57 In that regard, it should be pointed out that the effectiveness of Directive 93/37 would not be fully upheld if the application of the scheme of the directive to a body which satisfies the conditions set out in the second subparagraph of Article 1(b) thereof, could be excluded owing solely to the fact that the tasks in the general interest having a character other than industrial or commercial which it carries out in practice were not entrusted to it at the time of its establishment.
58 The same concern to ensure the effectiveness of the second subparagraph of Article 1(b) of Directive 93/37 also militates against drawing a distinction according to whether the statutes of such an entity were or were not amended to reflect actual changes in its sphere of activity.
59 In addition, the wording of the second subparagraph of Article 1(b) of Directive 93/37 contains no reference to the legal basis of the activities of the entity concerned.
60 It is appropriate, furthermore, to point out that, in relation to the definition of the expression `body governed by public law' in the second subparagraph of Article 1(b) of Directive 92/50, which is in terms identical to those contained in the second subparagraph of Article 1(b) of Directive 93/37, the Court has already held that the existence or absence of needs in the general interest not having an industrial or commercial character must be appraised objectively, the legal form of the provisions in which those needs are mentioned being immaterial in that regard (Case C-360/96 BFI Holding [1998] ECR I-6821, paragraph 63).
61 It follows that the fact that, in the main proceedings, the extension of EBS's sphere of activities did not give rise to an amendment to the provisions of its statutes concerning its objects is irrelevant.
62 Although EBS's assumption of responsibility for needs in the general interest not having an industrial or commercial character has not been formally incorporated in its statutes, it is none the less set out in the contracts which EBS made with the city of Vienna and is therefore capable of being objectively established.
63 It is therefore appropriate to reply to the first question that a body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but which has subsequently taken responsibility for such needs, which it has since actually satisfied, fulfils the condition required by the first indent of the second subparagraph of Article 1(b) of Directive 93/37 so as to be capable of being regarded as a body governed by public law within the meaning of that provision, on condition that the assumption of responsibility for the satisfaction of those needs can be established objectively. | C-237/99
France | 39-43 | W2-1.b.1
W2-1.b.2 | 39 Since the present proceedings concern the possible classification of various bodies as bodies governed by public law within the meaning of the second subparagraph of Article 1(b) of the Directive, it should be pointed out that, according to that provision, a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law (see Mannesmann Anlagenbau Austria, cited above, paragraph 20).
40 Furthermore, the three conditions set out in that provision are cumulative (Mannesmann Anlagenbau Austria, cited above, paragraph 21).
41 As far as the purpose of the Directive is concerned, moreover, the Court has held that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, most recently, Case C-380/98 The Queen v H.M. Treasury, ex parte University of Cambridge [2000] ECR I-8035, paragraph 16).
42 Consequently, the aim of the Directive is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (University of Cambridge, paragraph 17).
43 It is in the light of those objectives that contracting authority, including a body governed by public law, must be interpreted in functional terms (see, to that effect, most recently, Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 36). | C-237/99
France | 44-61 | W2-1.b.2 | 44 As regards the alternative conditions set out in the third indent of the second subparagraph of Article 1(b) of the Directive, each reflects the close dependency of a body on the State, regional or local authorities or other bodies governed by public law (University of Cambridge, paragraph 20).
45 In the light of that case-law, it must be held, as regards OPACs, that it actually follows from the rules relating to them, as described by the Commission, whose arguments, moreover, have not been contradicted on that point by the French Government, that they fulfilled the thee conditions that characterise a body governed by public law set out in the second subparagraph of Article 1(b) of the Directive.
46 It follows that the action is well founded in that the charge against the French Republic is that the two OPACs expressly referred to did not comply with the obligation to publish the notices of contract in the Official Journal of the European Communities laid down in Article 11(2) of the Directive.
47 As regards SA HLMs, it is common ground, and it is not disputed by the French Government, that they meet needs in the general interest, not having an industrial or commercial character, and that they have legal personality.
48 As regards the third condition that characterises a body governed by public law, it is necessary to consider whether the various controls to which SA HLMs are subject render them dependent on the public authorities in such a way that the latter are able to influence their decisions in relation to public contracts.
49 As the Advocate General has observed at point 48 of his Opinion, since management supervision within the meaning of the third indent of the second subparagraph of Article 1(b) of the Directive constitutes one of the three criteria referred to in that provision, it must give rise to dependence on the public authorities equivalent to that which exists where one of the other alternative criteria is fulfilled, namely where the body in question is financed, for the most part, by the public authorities or where the latter appoint more than half of the members of its managerial organs.
50 In that regard, although, as the Advocate General observes at points 53 to 64 of his Opinion, SA HLMs are commercial companies, their activities are very narrowly circumscribed.
51 Article L. 411-1 of the Code defines their activities in general terms and provides that the technical characteristics and cost prices are to be determined by administrative decision. According to Article R. 422-1 of the Code, their statutes are to contain clauses consistent with the standard clauses set out in an annex to the Code, and those clauses are very detailed, in particular as regards the objects of those entities.
52 As the Advocate General observes at point 67 of his Opinion, since the rules of management are very detailed, the mere supervision of compliance with them may in itself lead to significant influence being conferred on the public authorities.
53 Second, as regards the supervision of SA HLMs' activities, in accordance with Articles L. 451-1 and R. 451-1 of the Code, low-rent housing bodies are subject to supervision by the administration and, more specifically, by the Minister responsible for finance and also by the Minister responsible for construction and housing. Those provisions do not specify the limits within which such supervision is to be exercised or whether it is to be confined to merely checking the accounts, as the French Government claims, although it has not adduced any evidence whatsoever to support the truth of that allegation.
54 Next, the Minister responsible for construction and housing is empowered by Article L. 422-7 of the Code to order that an SA HLM be wound up and to appoint a liquidator, and is also empowered under Article L. 422-8 of the Code to suspend the managerial organs and appoint a provisional administrator.
55 Those powers are provided for in the event of serious irregularities, gross mismanagement or failure to act on the part of the administrative board, or of the managerial board and the supervisory board. As the Advocate General observes at points 72 to 75 of his Opinion, the latter two cases fall within the management policy of the company concerned and not the mere verification of legality.
56 Furthermore, even accepting that, as the French Government maintains, the exercise of the powers conferred on the competent Minister by those provisions is in fact the exception, it none the less implies permanent supervision, which provides the only means of detecting gross mismanagement or failure to act on the part of the managerial organs.
57 Furthermore, it follows from Articles L. 423-1 and L. 423-2 of the Code that the Minister responsible for construction and housing may impose a specific course of management action on SA HLMs, either by requiring that they display a minimum level of dynamism or by placing limits on what is considered to be excessive activity.
58 Last, the interministerial task force for the inspection of social housing set up by Decree No 93-236 may, in addition to its responsibilities for conducting documentary and on-the-spot inspections of the operations of low-cost housing bodies, be made responsible for carrying out studies, audits or assessments in the field of social housing and may draw up proposals as to the action to be taken following its inspection reports. It also ensures that the persons concerned by its inspections implement the measures adopted by the Ministers to whom it is responsible.
59 It follows from all the provisions referred to in paragraphs 51 to 58 of the present judgment that the management of SA HLMs is subject to supervision by the public authorities which allows the latter to influence the decisions of the SA HLMs in relation to public contracts.
60 Consequently, SA HLMs, which also satisfy at least one of the three alternative criteria referred to in the third indent of the second subparagraph of Article 1(b) of the Directive, thus fulfil the three conditions which characterise a body governed by public law within the meaning of the Directive and are contracting authorities.
61 It follows that the action is also well founded in so far as it concerns the award of a public contract by SA HLM Logirel. | C-237/99
France | 62 | W2-1.b.2-impl
W2-7.1-impl
W2-11.2 | 62 Accordingly, it must be held that since the Val-de-Marne and Paris OPACs and SA HLM Logirel did not publish contract notices in the Official Journal of the European Communities concerning the public contracts announced by notices in the Bulletin Officiel des Annonces des Marchés Publics of 7 and 16 February 1995 and the Moniteur des Travaux Publics et du Bâtiment of 17 February 1995, the French Republic has failed to fulfil its obligations under the Directive, in particular Article 11(2) thereof. | C-223/99 & C-260/99
Agora | 25-42 | S2-1.b.2 | 25 It must first of all be observed, therefore, that the question relates to the interpretation of the second subparagraph of Article 1(b) of the Directive, which provides that a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, with legal personality and closely dependent on the State, regional or local authorities or other bodies governed by public law.
26 In that regard, it should be noted that the three conditions set out in that provision are cumulative (Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 21).
27 Secondly, it is apparent from the two orders for reference that the national court considers that Ente Fiera in any event satisfies two of those three conditions, and that it is uncertain only as to whether the Ente was established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character.
28 It also appears from Article 1 of its articles of association that Ente Fiera's objects are to carry on and facilitate any activity concerned with the organisation of fairs and exhibitions, conferences and any other initiative which, by fostering trade relations, promotes the presentation of the production of goods and services and, if possible, their sale.
29 As the Commission states, this activity is pursued at international level by a number of different operators established in large cities in the various Member States who are in competition with each other.
30 In addition, although Ente Fiera is a non-profit-making organisation, it is managed according to the criteria of performance, efficiency and cost-effectiveness.
31 It follows from the foregoing that the question referred for a preliminary ruling must be understood as asking essentially whether a body whose object is to carry on activities relating to the organisation of fairs, exhibitions and other similar initiatives, which is non-profit-making, but managed according to the criteria of performance, efficiency and cost-effectiveness, and which operates in a competitive environment, meets needs in the general interest, not having an industrial or commercial character within the meaning of the first indent of the second subparagraph of Article 1(b) of the Directive.
32 In order to reply to the question thus reformulated, it must be borne in mind that the Court has already held that the second subparagraph of Article 1(b) of Directive 92/50 draws a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character (Case C-360/96 BFI Holding [1998] ECR I-6821, paragraph 36). 33 In that regard, it is clear, first of all, that activities relating to the organisation of fairs, exhibitions and other similar initiatives meet needs in the general interest.
34 An organiser of such events, in bringing together manufacturers and traders in one geographical location, is not acting solely in the individual interest of those manufacturers and traders, who are thereby afforded an opportunity to promote their goods and merchandise, but is also providing consumers who attend the events with information that enables them to make choices in optimum conditions. The stimulus to trade which results may be considered to fall within the general interest.
35 Secondly, the question arises whether, in the light of the information on the file, the needs in question are lacking an industrial or commercial character.
36 In that regard, it is useful to refer to the list of bodies governed by public law contained in Annex I to Directive 71/305/EEC of the Council of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), as amended by Council Directive 93/37/EEC of 14 June 1993 (OJ 1993 L 199, p. 54), to which Article 1(b) of Directive 92/50 refers. Though not exhaustive, that list is intended to be as complete as possible.
37 Analysis of the list reveals that the needs in question are generally, first, those which are met otherwise than by the availability of goods or services in the market place and, secondly, those which, for reasons associated with the general interest, the State itself chooses to provide or over which it wishes to retain a decisive influence (see to that effect BFI Holding, cited above, paragraphs 50 and 51).
38 Furthermore, although the Court has held that the term needs in the general interest, not having an industrial or commercial character does not exclude needs which are or can be satisfied by private undertakings as well (BFI Holding, cited above, paragraph 53), it has also found that the existence of significant competition, and in particular the fact that the entity concerned is faced with competition in the market place, may be indicative of the absence of a need in the general interest, not having an industrial or commercial character (BFI Holding, cited above, paragraph 49).
39 It must first of all be observed that the organisation of fairs, exhibitions and other similar initiatives is an economic activity which involves offering services on the market place. In this case, it is clear from the file that the body in question provides such services to exhibitors in consideration for payment. By its activity, it meets the commercial needs of, first of all, exhibitors who benefit from being able to promote the goods or services which they exhibit, and, on the other hand, visitors who wish to gather information with a view to making purchasing decisions.
40 Next, even if the body in question is non-profit-making, it does operate, as it clear from Article 1 of its articles of association, according to criteria of performance, efficiency and cost-effectiveness. Since there is no mechanism for offsetting any financial losses, it bears the economic risk of its activities itself.
41 Furthermore, the Commission's interpretative communication concerning the application of the Single Market rules to the sector of fairs and exhibitions (OJ 1998 C 143, p. 2) also gives an indication serving to confirm that holding fairs and exhibitions constitutes an industrial or commercial activity. That communication is intended, inter alia, to explain the manner in which freedom of establishment and the free movement of services benefit the organisers of fairs and exhibitions. It is clear that this does not involve needs which the State generally chooses to meet itself or over which it wishes to retain a decisive influence.
42 Lastly, the fact that a body such as that in issue in the main proceedings operates in a competitive environment - which it is for the national court to verify, having regard to all its activities at the international, national and regional levels - tends to confirm the view that the activity of organising fairs and exhibitions does not meet the criterion laid down by the first indent of the second subparagraph of Article 1(b) of the Directive. | C-380/98
University of Cambridge | 18-19 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 18 According to Article 1(b), second subparagraph, of Directives 92/50, 93/36 and 93/37, a body governed by public law means any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character (first indent), having legal personality (second indent) and financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law (third indent).
19 In the main proceedings it is common ground that the University meets the two conditions mentioned in the first two indents of Article 1(b), second subparagraph, of the directives. Consequently, whether the University is to be included in the list for Annex I of Directive 93/37 depends in this case solely on the answer to the question whether that university is financed for the most part by one or more contracting authorities within the meaning of the third indent of that provision. | C-380/98
University of Cambridge | 20-26 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 20 As regards the alternative conditions set out in Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37, paragraph 20 of the judgment in Mannesmann Anlagenbau Austria (cited above) indicates that each reflects the close dependency of a body on the State, regional or local authorities or other bodies governed by public law. The provision thus defines the three forms of body governed by public law as three types of close dependency on another contracting authority.
21 Whilst the way in which a particular body is financed may reveal whether it is closely dependent on another contracting authority, it is clear that that criterion is not an absolute one. Not all payments made by a contracting authority have the effect of creating or reinforcing a specific relationship of subordination or dependency. Only payments which go to finance or support the activities of the body concerned without any specific consideration therefor may be described as public financing.
22 It follows that payments in the form of awards or grants for the support of research work, such as those referred to in paragraph (a) of the first question, may be regarded as financing by a contracting authority. Though the recipient of such financing need not be the university itself, but a member of it in his capacity as a provider of services, we are concerned with financing that goes to the institution as a whole in the context of its research work.
23 Similarly, the grants referred to in paragraph (d) of the first question may be classified as public financing. Those payments constitute a social measure introduced for the benefit of certain students who by themselves would not be able to meet tuition fees which are sometimes very high. Since there is no contractual consideration for those payments, they should be regarded as financing by a contracting authority in the context of its educational activities.
24 The position is quite different in the case of the sources of financing referred to in paragraphs (b) and (c) of the first question. The sums paid by one or more contracting authorities constitute in that case consideration for contractual services provided by the university, such as the execution of particular research work or the organisation of seminars and conferences. It matters little in this context whether those activities of a commercial nature happen to coincide with the teaching and research activities of the university. The contracting authority has in fact an economic interest in providing the service.
25 Naturally, such a contractual relationship may also make the body concerned dependent on the contracting authority. However, as the Advocate General has noted in paragraph 46 of his Opinion, the nature of the relationship is not the same as that which would result from a mere subsidy. Rather, it is analogous to the dependency that exists in normal commercial relationships formed by reciprocal contracts freely negotiated between the contracting parties. Consequently, the payments referred to in paragraphs (b) and (c) of the first question do not fall within the concept of public financing.
26 Accordingly, the reply to the first question is that the expression financed... by [one or more contracting authorities] in Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37, properly construed, includes awards or grants paid by one or more contracting authorities for the support of research work and student grants paid by local education authorities to universities in respect of tuition for named students. Payments made by one or more contracting authorities either in the context of a contract for services comprising research work or as consideration for other services such as consultancy or the organisation of conferences do not, by contrast, constitute public financing within the meaning of those directives. | C-380/98
University of Cambridge | 27-33 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 27 The second question asks, in essence, what meaning is to be given to the expression financed for the most part in Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37.
28 For that purpose it is necessary to consider whether for the most part means a specific percentage, or whether it is to have some other meaning.
29 Contrary to the submissions of the Commission and the Governments under Article 20 of the EC Statute of the Court of Justice, supporting a quantitative interpretation of the term for the most part, so that it would refer to public financing in excess of 50%, the University maintains that it is to be interpreted qualitatively. The University contends that account should be taken only of payments which confer on those making them control of procurement. However, if the interpretation should be quantitative, then the term must on any view be taken to mean that the financing in question is predominant. This, according to the University, can only be the case where it represents three quarters of the total financing.
30 That interpretation cannot be upheld. Apart from the fact that there is no support for it in the wording of Directives 92/50, 93/36 and 93/37, it does not reflect the ordinary meaning of the phrase for the most part, which in normal usage always means more than half, without it being necessary for one group to be predominant or preponderant as regards another.
31 That is, moreover, borne out by the wording of Article 1(2) of 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), which defines public undertaking as, inter alia, an undertaking in which the public authorities hold, directly or indirectly, the majority of the undertaking's subscribed capital or control, directly or indirectly, the majority of the votes attaching to shares issued by the undertaking. As the Advocate General noted in paragraph 58 of his Opinion, if such quantitative criteria are sufficient to classify an undertaking as a public undertaking, that must be the case a fortiori when determining the conditions under which public financing is to be regarded as for the most part.
32 In addition, interpreting for the most part as meaning more than half is consistent with the provisions in respect of one of the other cases referred to in Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37. According to those provisions, the term body governed by public law also includes any body having an administrative, managerial or supervisory board more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
33 Accordingly, the reply to the second question is that, on a proper construction, the term for the most part in Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37 means more than half. | C-380/98
University of Cambridge | 34-36 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 34 In the third question, which is closely linked to the previous two, the national court asks, in essence, what is to be included in the basis for calculating the financing which is for the most part public. In particular, it asks whether all sources of financing for the university are to be taken into account when determining whether financing is for the most part public or whether regard should be had only to sources of finance for academic and related activities. 35 As to that, it is sufficient to note that when Article 1(b), second subparagraph, third indent, of Directives 92/50, 93/36 and 93/37 refers to financing which is for the most part from public sources, that necessarily implies that a body may also be financed in part in some other way without thereby losing its character as a contracting authority. 36 The reply to the third question is therefore that in order to determine correctly the percentage of public financing of a particular body account must be taken of all of its income, including that which results from a commercial activity. | C-380/98
University of Cambridge | 37-44 | W2-1.b.2
G2-1.b.2
S2-1.b.2 | 37 In the fourth question the national court asks what period is to be taken into consideration in calculating the university's financing and how account is to be taken of changes which may occur in the course of a procurement procedure, when determining whether the university is a contracting authority for the purposes of a particular procurement.
38 It is to be noted at the outset that in the absence of an express provision to that effect in Directives 92/50, 93/36 and 93/37, the reply to both parts of this question must take into account the requirement of legal certainty, as stated by the Court in paragraph 34 of Mannesmann Anlagenbau Austria (cited above). Although in determining whether a body is to be regarded as a contracting authority for the purposes of a specific procurement regard must be had to its precise financial situation, it is also necessary to ensure a measure of foreseeability for the procurement procedure, when the financing of a body such as the University may vary from one year to the next.
39 Although the directives are silent as to the period to be taken into consideration when determining whether a body is a contracting authority, they do contain provisions regarding the publication of indicative notices from time to time which may provide useful guidance for the reply to this question. Article 15(1) of Directive 92/50 and Article 9(1) of Directive 93/36 provide expressly that indicative notices are to be published by the contracting authorities as soon as possible after the beginning of the budgetary year where the total amount of the procurement which they envisage awarding during the subsequent 12 months is equal to or greater than ECU 750 000. The provisions thus imply that the contracting authority retains that status for 12 months from the beginning of each budgetary year.
40 Accordingly, the decision as to whether a body such as the University is a contracting authority must be made annually and the budgetary year during which the procurement procedure is commenced must be regarded as the most appropriate period for calculating how that body is financed.
41 That being so, legal certainty and transparency require that both the University and third parties concerned are in a position to know from the beginning of the budgetary year whether the procurement contracts they envisage awarding during that year fall within the scope of Directives 92/50, 93/36 and 93/37. It follows that for the purposes of deciding whether a university is a contracting authority the way in which it is financed must be calculated on the basis of the figures available at the beginning of the budgetary year, even if they are only provisional.
42 As regards the second part of the fourth question, the national court asks, in essence, whether, and if so how, account is to be taken of any changes in financing which may occur during a procurement procedure compared with the way in which the body had been financed at the date of the commencement of the procedure.
43 As the Court noted in paragraph 34 of Mannesmann Anlagenbau Austria (cited above), the principle of legal certainty requires that the Community rules be clear and their application foreseeable for all those concerned. As a result of that requirement, and of those pertaining to the protection of the interests of tenderers, it is necessary for a body which on the date of the commencement of the procurement procedure constitutes a contracting authority for the purposes of Directives 92/50, 93/36 and 93/37 to remain, as far as that procurement is concerned, subject to the requirements of those directives until the relevant procedure has been completed.
44 Accordingly, the reply to the fourth question is that the decision as to whether a body such as the University is a contracting authority must be made annually and the budgetary year in which the procurement procedure commences must be regarded as the most appropriate period for calculating the way in which that body is financed, so that the calculation must be made on the basis of the figures available at the beginning of the budgetary year, even if they are provisional. A body which constitutes a contracting authority for the purposes of Directives 92/50, 93/36 and 93/37 when a procurement procedure commences remains, as far as that procurement is concerned, subject to the requirements of those directives until such time as the relevant procedure has been completed. | C-324/98
Telaustria | 36 | U2-1.2 | 36 As regards the scope ratione personae of Directive 93/38, it is common ground, as is clear from the order for reference, that Telekom Austria, whose capital belongs entirely to the Austrian public authorities, constitutes a public undertaking over which those authorities may, by virtue of the fact that the Republic of Austria holds the entire capital, exercise a dominant influence. It follows that Telekom Austria must be regarded as a public undertaking for the purpose of Article 1(2) of that directive. | C-258/97
Hospital Ingenieure Hospital Ingenieure | 28- | G1-1.b.p2
G1-1.b.p3
G1-I.4
G1A1-1.1 | 28 In those circumstances, Coillte Teoranta cannot be regarded as being the State or a regional or local authority within the meaning of Article 1(b) of Directive 77/62. It must still be considered, however, whether it is one of the bodies corresponding to legal persons governed by public law listed in Annex I to Directive 77/62.
29 With reference to Ireland, that annex describes as contracting authorities other public authorities whose public supply contracts are subject to control by the State.
30 It must be borne in mind that the purpose of coordinating at Community level the procedures for the award of public supply contracts is to eliminate barriers to the free movement of goods.
31 In order to give full effect to the principle of free movement, the term `contracting authority' must be interpreted in functional terms (see, to that effect, the judgment of 10 November 1998 in Case C-360/96 Gemeente Arnhem and Gemeente Rheden v BFI Holding [1998] ECR I-6821, paragraph 62).
32 It must be emphasised here that it is the State which set up Coillte Teoranta and entrusted specific tasks to it, consisting principally of managing the national forests and woodland industries, but also of providing various facilities in the public interest. It is also the State which has power to appoint the principal officers of Coillte Teoranta.
33 Moreover, the Minister's power to give instructions to Coillte Teoranta, in particular requiring it to comply with State policy on forestry or to provide specified services or facilities, and the powers conferred on that Minister and the Minister for Finance in financial matters give the State the possibility of controlling Coillte Teoranta's economic activity.
34 It follows that, while there is indeed no provision expressly to the effect that State control is to extend specifically to the awarding of public supply contracts by Coillte Teoranta, the State may exercise such control, at least indirectly.
35 Consequently, Coillte Teoranta must be regarded as a `public authority whose public supply contracts are subject to control by the State' within the meaning of Point VI of Annex I to Directive 77/62.
36 The answer to the questions referred for a preliminary ruling must therefore be that a body such as Coillte Teoranta is a contracting authority within the meaning of Article 1(b) of Directive 77/62, as amended by Directive 88/295. | C-360/96
Gemeente Arnhem | 28-30 | S2-1.b.2 | 28 In that connection, it is clear from the second subparagraph of Article 1(b) of Directive 92/50 that a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law (see Case C-44/96 Mannesmann Anlagenbau Austria and Others v Strohal Rotationsdruck [1998] ECR I-73, paragraph 20).
29 As the Court held in paragraph 21 of Mannesmann Anlagenbau Austria, cited above, the three conditions set out in that provision are cumulative.
30 The national court considers that the second and third conditions are fulfilled. Its questions thus relate only to the first condition. | C-360/96
Gemeente Arnhem | 31-36 | S2-1.b.2 | 31 By its first question, the national court seeks clarification as to the relationship between the terms `needs in the general interest' and `not having an industrial or commercial character'. It asks in particular whether the latter expression is intended to limit the term `needs in the general interest' to those which are not of an industrial or commercial character or, on the contrary, whether it means that all needs in the general interest are not industrial or commercial in character.
32 In that regard, it is clear from the second subparagraph of Article 1(b) of Directive 92/50, in its different language versions, that the absence of an industrial or commercial character is a criterion intended to clarify the meaning of the term `needs in the general interest' as used in that provision.
33 In paragraphs 22 to 24 of Mannesmann Anlagenbau Austria, cited above, the Court adopted the same interpretation in relation to the second subparagraph of Article 1(b) of 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), a provision which is, essentially, the same as the second subparagraph of Article 1(b) of Directive 92/50.
34 Moreover, the only interpretation capable of guaranteeing the effectiveness of the second subparagraph of Article 1(b) of Directive 92/50 is that it creates, within the category of needs in the general interest, a sub-category of needs which are not of an industrial or commercial character.
35 If the Community legislature had considered that all needs in the general interest were not of an industrial or commercial character it would not have said so because, in that context, the second component of the definition would serve no purpose.
36 The answer to the first question must therefore be that the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that the legislature drew a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character. | C-360/96
Gemeente Arnhem | 38-53 | S2-1.b.2 | 38 By its third question, the national court asks essentially whether the term `needs in the general interest, not having an industrial or commercial character' excludes needs which are also met by private undertakings.
39 According to BFI, the possibility of a body governed by public law must be ruled out where private undertakings may carry out the same activities, such activities therefore being capable of being performed on a competitive basis. In this case, more than half the municipalities in the Netherlands entrust the collection of waste to private economic operators. There is thus a commercial market and the entities active in it do not constitute bodies governed by public law within the meaning of Article 1(b) of Directive 92/50.
40 It must first be emphasised here that the first indent of the second subparagraph of Article 1(b) of Directive 92/50 refers only to the needs which the entity must meet and does not say whether or not those needs may also be met by private undertakings.
41 Next, it must be borne in mind that the purpose of coordinating at Community level the procedures for the award of public service contracts is to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State who wish to offer goods or services to contracting authorities in another Member State.
42 Consequently, the objective of Directive 92/50 is to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities (see, to that effect, Mannesmann Anlagenbau Austria, cited above, paragraph 33).
43 The fact that there is competition is not sufficient to exclude the possibility that a body financed or controlled by the State, territorial authorities or other bodies governed by public law may choose to be guided by other than economic considerations. Thus, for example, such a body might consider it appropriate to incur financial losses in order to follow a particular purchasing policy of the body upon which it is closely dependent.
44 Moreover, since it is hard to imagine any activities that could not in any circumstances be carried on by private undertakings, the requirement that there should be no private undertakings capable of meeting the needs for which the body in question was set up would be liable to render meaningless the term `body governed by public law' used in Article 1(b) of Directive 92/50.
45 It is of no avail to object that, by recourse to Article 6 of Directive 92/50, the contracting authorities could evade competition from private undertakings which considered themselves capable of meeting the same needs in the general interest as the entity concerned. The protection of competitors of bodies governed by public law is already assured by Article 85 et seq. of the EC Treaty since the application of Article 6 of Directive 92/50 is subject to the condition that the laws, regulations or administrative provisions on which the body's exclusive right is based must be compatible with the Treaty.
46 It was for that reason that, in Mannesmann Anlagenbau Austria, cited above, paragraph 24, the Court held, without considering whether private undertakings might meet the same needs, that a State printer met needs in the general interest not having an industrial or commercial character.
47 It follows that Article 1(b) of Directive 92/50 may apply to a particular body even if private undertakings meet, or may meet, the same needs as it and that the absence of competition is not a condition necessarily to be taken into account in defining a body governed by public law.
48 It must be emphasised, however, that the existence of competition is not entirely irrelevant to the question whether a need in the general interest is other than industrial or commercial.
49 The existence of significant competition, and in particular the fact that the entity concerned is faced with competition in the marketplace, may be indicative of the absence of a need in the general interest, not having an industrial or commercial character.
50 Conversely, the latter needs are as a general rule met otherwise than by the availability of goods or services in the marketplace, as evidenced by the list of bodies governed by public law contained in Annex I to 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), as amended by Directive 93/37, to which Article 1(b) of Directive 92/50 refers. Although not exhaustive, that list is intended to be as complete as possible.
51 An analysis of that list shows that in general the needs in question are ones which, for reasons associated with the general interest, the State itself chooses to provide or over which it wishes to retain a decisive influence.
52 In this case it is undeniable that the removal and treatment of household refuse may be regarded as constituting a need in the general interest. Since the degree of satisfaction of that need considered necessary for reasons of public health and environmental protection cannot be achieved by using disposal services wholly or partly available to private individuals from private economic operators, that activity is one of those which the State may require to be carried out by public authorities or over which it wishes to retain a decisive influence.
53 In the light of the foregoing, the answer to the third question must be that the term `needs in the general interest, not having an industrial or commercial character' does not exclude needs which are or can be satisfied by private undertakings as well. | C-360/96
Gemeente Arnhem | 54-58 | S2-1.b.2 | 54 By its fourth, fifth and seventh questions, the national court asks whether the condition that a body must have been set up for the specific purpose of meeting needs in the general interest means that the activity of that body must, to a considerable extent, be concerned with meeting such needs.
55 It must be borne in mind here that, in Mannesmann Anlagenbau Austria, cited above, paragraph 25, the Court held that it was immaterial whether, in addition to its duty to meet needs in the general interest, an entity was free to carry out other activities. The fact that meeting needs in the general interest constitutes only a relatively small proportion of the activities actually pursued by that entity is also irrelevant, provided that it continues to attend to the needs which it is specifically required to meet.
56 Since the status of a body governed by public law is not dependent on the relative importance, within its business as a whole, of the meeting of needs in the general interest not having an industrial or commercial character, it is a fortiori immaterial that commercial activities may be carried out by a separate legal person forming part of the same group or concern as it.
57 Conversely, the fact that one of the undertakings of a group or concern is a body governed by public law is not sufficient for all of them to be regarded as contracting authorities (see, to that effect, Mannesmann Anlagenbau Austria, cited above, paragraph 39).
58 The answer to the fourth, fifth and seventh questions must therefore be that the status of a body governed by public law is not dependent on the relative importance, within its business as a whole, of the meeting of needs in the general interest not having an industrial or commercial character. It is likewise immaterial that commercial activities may be carried out by a separate legal person forming part of the same group or concern as it. | C-360/96
Gemeente Arnhem | 59-63 | S2-1.b.2 | 59 By its sixth question, the national court, finally, wishes to ascertain what inferences are to be drawn from the fact that the provisions setting up the entity in question and specifying the needs which it must meet are in the nature of laws, regulations or administrative or other provisions.
60 It must be stated here that, whilst the requirement that the exclusive right be based on published laws, regulations or administrative provisions must be met for Article 6 of Directive 92/50 to be applicable, it forms no part of the definition of a body governed by public law.
61 The wording of the second subparagraph of Article 1(b) of Directive 92/50 makes no reference to the legal basis of the activities of the entity concerned.
62 Furthermore, it must be borne in mind that, with a view to giving full effect to the principle of freedom of movement, the term `contracting authority' must be interpreted in functional terms (see, to that effect, Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 11). In view of that need, no distinction should be drawn by reference to the legal form of the provisions setting up the entity and specifying the needs which it is to meet.
63 The answer to the sixth question must therefore be that the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that the existence or absence of needs in the general interest not having an industrial or commercial character must be appraised objectively, the legal form of the provisions in which those needs are mentioned being immaterial in that respect. | C-353/96
Ireland | 33-41 | G1-1.b.p2
G1-1.b.p3
G1-I.4
G1A1-1.1 | 33 In those circumstances, Coillte Teoranta cannot be regarded as being the State or a regional or local authority within the meaning of Article 1(b) of Directive 77/62. It must still be considered, however, whether it is one of the bodies corresponding to legal persons governed by public law listed in Annex I to Directive 77/62.
34 With reference to Ireland, that annex describes as contracting authorities other public authorities whose public supply contracts are subject to control by the State.
35 It must be borne in mind that the purpose of coordinating at Community level the procedures for the award of public supply contracts is to eliminate barriers to the free movement of goods.
36 In order to give full effect to the principle of free movement, the term `contracting authority' must be interpreted in functional terms (see, to that effect, the judgment of 10 November 1998 in Case C-360/96 Gemeente Arnhem and Gemeente Rheden v BFI Holding [1998] ECR I-6821, paragraph 62).
37 It must be emphasised here that it is the State which set up Coillte Teoranta and entrusted specific tasks to it, consisting principally of managing the national forests and woodland industries, but also of providing various facilities in the public interest. It is also the State which has power to appoint the principal officers of Coillte Teoranta.
38 Moreover, the Minister's power to give instructions to Coillte Teoranta, in particular requiring it to comply with State policy on forestry or to provide specified services or facilities, and the powers conferred on that Minister and the Minister for Finance in financial matters give the State the possibility of controlling Coillte Teoranta's economic activity.
39 It follows that, while there is indeed no provision expressly to the effect that State control is to extend specifically to the awarding of public supply contracts by Coillte Teoranta, the State may exercise such control, at least indirectly.
40 Consequently, Coillte Teoranta must be regarded as a `public authority whose public supply contracts are subject to control by the State' within the meaning of Point VI of Annex I to Directive 77/62.
41 Coillte Teoranta is therefore a contracting authority within the meaning of Directive 77/62. It was consequently obliged in the present case to have a notice of tender published in the Official Journal of the European Communities. | | C-44/96 Mannesmann | 20-35 | W2-1.a.p1
W2-1.b.2 | 20 Under the second subparagraph of Article 1(b) of Directive 93/37, a body governed by public law means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law.
21 It is clear from that provision that the three conditions set out therein are cumulative.
22 As regards the first condition, it should be noted, first, that the OS was established in order to produce, on an exclusive basis, official administrative documents, some of which require secrecy or security measures, such as passports, driving licences and identity cards, whilst others are intended for the dissemination of legislative, regulatory and administrative documents of the State.
23 Furthermore, the prices for the printed matter which the OS is required to produce are fixed by a body consisting mainly of members appointed by the Federal Chancellery or various ministries and a State control service is responsible for monitoring the printed matter which is subject to security measures.
24 According to the legislation applicable to it, therefore, that entity was established for the purpose of meeting needs in the general interest, not having an industrial or commercial character. The documents which the OS must produce are closely linked to public order and the institutional operation of the State and require guaranteed supply and production conditions which ensure that standards of confidentiality and security are observed.
25 Furthermore, it is apparent from Paragraphs 1(1) and 2(1) of the StDrG that the OS was established for the specific purpose of meeting those needs in the general interest. In that respect, it is immaterial that such an entity is free to carry out other activities in addition to that task, such as the production of other printed matter and the publication and distribution of books. The fact, raised by the Austrian Government in its written observations, that meeting needs in the general interest constitutes only a relatively small proportion of the activities actually pursued by the OS is also irrelevant, provided that it continues to attend to the needs which it is specifically required to meet.
26 The condition, laid down in the first indent of the second subparagraph of Article 1(b) of the directive, that the body must have been established for the `specific' purpose of meeting needs in the general interest, not having an industrial or commercial character, does not mean that it should be entrusted only with meeting such needs.
27 As regards the second condition laid down in the second subparagraph of Article 1(b) of Directive 93/37, it should be noted that, according to the national Law, the OS has legal personality.
28 As regards the third condition, it should be noted that the Director-General of the OS is appointed by a body consisting mainly of members appointed by the Federal Chancellery or various ministries. Furthermore, it is subject to scrutiny by the Court of Auditors and a State control service is responsible for monitoring the printed matter which is subject to security measures. Finally, according to the statements made at the hearing by SRG, the majority of the shares in the OS are still held by the Austrian State.
29 It follows that an entity such as the OS must be classified as a body governed by public law within the meaning of the second subparagraph of Article 1(b) of Directive 93/37 and must thus be regarded as a contracting authority within the meaning of the first subparagraph of that provision.
30 The Austrian and Netherlands Governments object that it is not possible to disregard the fact that the overall activity of an entity such as the OS is dominated by those activities pursued in order to meet needs having an industrial or commercial character.
31 In that respect, it should be recalled that, as stated at paragraph 26 above, the wording of the second subparagraph of Article 1(b) of Directive 93/37 does not exclude the possibility that a contracting authority may pursue other activities in addition to its specific task of meeting needs in the general interest, not having an industrial or commercial character.
32 As regards such activities, it should be noted first that Article 1(a) of the directive makes no distinction between public works contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task.
33 The fact that no such distinction is made is explained by the aim of Directive 93/37 to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities.
34 Finally, to interpret the first indent of the second subparagraph of Article 1(b) of Directive 93/37 in such a way that its application would vary according to the relative proportion of its activities pursued for the purpose of meeting needs not having an industrial or commercial character would be contrary to the principle of legal certainty which requires a Community rule to be clear and its application foreseeable by all those concerned.
35 The answer to the first and sixth questions referred by the national court should therefore be that an entity such as the OS must be regarded as a body governed by public law within the meaning of the second subparagraph of Article 1(b) of Directive 93/37, and thus as a contracting authority within the meaning of the first subparagraph of that provision, so that works contracts, of whatever nature, entered into by that entity are to be considered to be public works contracts within the meaning of Article 1(a) of that directive. | C-44/96
Mannesmann | 37-41 | W2-1.b.2 | 37 By its fourth and fifth questions, the national court is essentially asking whether an undertaking which carries on commercial activities and in which a contracting authority has a majority shareholding must itself be considered to be a contracting authority within the meaning of Article 1(b) of Directive 93/37, if that undertaking was established by the contracting authority in order to carry on commercial activities or if the contracting authority transfers to it funds derived from activities it pursues in order to meet needs in the general interest, not having an industrial or commercial character.
38 As pointed out at paragraph 21 above, it is clear from the wording of the second subparagraph of Article 1(b) of Directive 93/37 that the three conditions set out therein are cumulative.
39 It is therefore not sufficient that an undertaking was established by a contracting authority or that its activities are financed by funds derived from activities pursued by a contracting authority in order for it to be regarded as a contracting authority itself. It must also satisfy the condition set out in the first indent of Article 1(b) of Directive 93/37, that it must be a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character.
40 If that condition is not satisfied, an undertaking such as the one referred to by the national court cannot be considered to be a contracting authority within the meaning of Article 1(b) of the directive.
41 The answer to the fourth and fifth questions referred by the national court must therefore be that an undertaking which carries on commercial activities and in which a contracting authority has a majority shareholding is not to be regarded as a body governed by public law within the meaning of Article 1(b) of Directive 93/37, and thus as a contracting authority within the meaning of that provision, on the sole ground that that undertaking was established by the contracting authority or that the contracting authority transfers to it funds derived from activities pursued in order to meet needs in the general interest, not having an industrial or commercial character. |
| Case | Pte | Ref | Text | N-061003
MT Højgaard | 1-15+K1 | W2-1.b | Ad påstand 1
1. Indledningsvis bemærker Klagenævnet, at begrebet »offentligretligt organ« efter udbudsreglernes formål og EF-domstolens praksis skal forstås bredt, jf. dom af 27. februar 2003, sag C-373/00, Truley GmbH, præmis 43.
2. Efter Bygge- og anlægsdirektivets artikel 1, litra b, forstås ved »offentlig retligt organ« ethvert organ,
- hvis opgave det er at imødekomme almenhedens behov, dog ikke på det erhvervs- og forretningsmæssige område
- som er en juridsk person, og
- hvis drift enten for mere end halvdelens vedkommende finansieres af staten, de lokale myndigheder eller andre offentligretlige organer, eller hvis drift er underlagt disses kontrol, eller hvortil staten, de lokale myndigheder eller andre offentligretlige organer kan udpege mere end halvdelen af medlemmerne i administrationens, ledelses- eller tilsynsorganet.
3. Indklagede er en juridisk person, som har til opgave at varetage almenhedens behov som beskrevet.
4. Bestemmelsens øvrige tre kriterier er ikke kumulative. Det er således tilstrækkeligt, at blot et af kriterierne er opfyldt. Klagenævnet har imidlertid fundet det rettest at tage stilling til hvert enkelt kriterium.
Ad finansieringskriteriet
5. Afgørelsen af, om indklagede er et offentligretligt organ i direktivets betydning, må i sammenhæng med dette kriterium træffes på grundlag af de oplysninger, der forelå ved begyndelsen af det regnskabsår, hvori der tages skridt til at indhente tilbud, altså regnskabsåret 2004. Regnskabet for regnskabsåret 2003, budgettet for 2004 og det efterfølgende regnskab for 2004 tegner her i øvrigt i det store og hele samme billede, og udsvingene er ikke af afgørende betydning for denne sag.
6. Kommunen yder et betydeligt årligt tilskud til indklagedes drift, men ifølge regnskaberne udgør beløbet ikke i sig selv mere end halvdelen af indklagedes indtægter (nemlig for 2003 ca. 4,8 mio. kr. af i alt ca. 18,5 mio. kr. og for 2004 ca. 4,6 mio. kr. af i alt ca. 20 mio. kr.).
7. Det er herefter afgørende, om de »lejeindtægter«, som ligeledes hvert år er tilgået indklagede fra kommunen (nemlig i 2003 ca. 13,6 mio. kr. og i 2004 ca. 14,9 mio. kr.), er ydet uden særlig modydelse, således at beløbet – helt eller delvist – skal lægges til det ydede tilskud ved beregningen af, om mere end halvdelen af indklagedes indtægter stammer fra kommunen.
8. Hillerød Kommune var – og er, jf. oplysningerne om de forgæves bestræbelser på at overdrage den oprindelige bygning til indklagede – ejer af centrets oprindelige bygning og anlæg. Denne bygning og de tilhørende anlæg har herefter også i 2004 været udlejet vederlagsfrit til indklagede i overensstemmelse med samarbejdsaftalens § 3, stk. 2.
9. De lejeindtægter, der foreligger til bedømmelse, er således de indtægter, som indklagede har oppebåret fra kommunen for leje af lokaler m.v., som indklagede vederlagsfrit havde fået stillet til rådighed, ligeledes af kommunen.
10. Efter den forklaring, der er afgivet af indklagedes direktør, dækker »lejeindtægter « i regnskaberne for 2003 og 2004 samt budgettet for 2004 indklagedes driftsomkostninger.
11. På denne baggrund, og da indklagede ikke over for Klagenævnet har dokumenteret, at »lejeindtægter« ikke udelukkende er dækning for indklagedes driftsomkostninger, finder Klagenævnet det herefter tilstrækkelig sandsynliggjort, at indklagedes drift i 2004 for mere end halvdelens vedkommende var finansieret af kommunen.
Ad kontrolkriteriet
12. Indklagede er undtaget fra de krav, som fremgår af Lov om Erhvervsdrivende Fonde, i medfør af lovens § 1, stk. 5, der har følgende ordlyd:
»Fondsmyndigheden kan med erhvervsministerens samtykke bestemme, at en fond, som på anden måde end efter denne lov er undergivet offentligt tilsyn og økonomisk kontrol, helt eller delvis skal være undtaget fra loven.«
13. Klagenævnet finder, at det herefter må være udgangspunktet, at indklagedes drift er underlagt kommunens kontrol også i den betydning, hvori dette udtryk er anvendt i direktivets artikel 1, litra b. Da indklagede ikke på nogen måde har afkræftet denne formodning, som støttes af sagens øvrige oplysninger, herunder f.eks. korrespondancen med tilsynsmyndigheden og byrådsreferaterne, anser Klagenævnet ligeledes bestemmelsens kontrolkriterium for opfyldt.
Ad udpegningskriteriet
14. Kun 2 af 6 medlemmer af indklagedes bestyrelse udpeges af kommunen. Betingelsen om, at mere end halvdelen af medlemmerne i indklagedes ledelsesorgan skal være udpeget af kommunen, er derfor ikke opfyldt.
15. Det følger af det ovenfor anførte, at Klagenævnet tager klagernes påstand 1 til følge.
Herefter bestemmes:
K1. Indklagede, Fonden for Frederiksborgcentret-Hillerød, har handlet i strid med med Bygge- og anlægsdirektivet ved at beslutte at indgå kontrakt med Carlo Lorentzen A/S vedrørende en udvidelse med en ny hal på ca. 7.750 m² uden forinden at gennemføre EU-udbud. | N-050311
MT Højgaard | P1 | W2-1.b | P1. Indklagede er et offentligretligt organ i henhold til Bygge- og anlægsdirektivets artikel 1, b) og er derfor undergivet direktivets udbudspligt. | N-041216
Brunata | 3-9 | G2-1.b.2-impl
G2-5.4-impl | 3. Klagenævnets kendelse af 25. november 2002 i sagen Skousen Husholdningsmaskiner A/S mod Arbejdernes Andels Boligforening indeholder en fremstilling om almene boligorganisationers forhold til de EU-retlige udbudsregler. I kendelsen af 25. november 2002 er det således fastslået, at de enkelte afdelinger under almene boligorganisationer er selvstændige økonomiske enheder, der selv træffer bestemmelse om bl.a. indkøb, således at boligorganisationen kun har visse kontrolfunktioner m.m. i sammenhængen. Som ligeledes fastslået i kendelsen af 25. november 2002 skal der som følge heraf som udgangspunkt ikke ske sammenlægning af indkøb foretaget af forskellige afdelinger under samme boligorganisation ved beregningen af sådanne indkøbs værdi i forhold til Indkøbsdirektivets tærskel- 1 2 3 24. værdi. Det bemærkes herved, at afdelinger i almene boligorganisationer er ordregivere i medfør af Indkøbsdirektivets artikel 1, b. Som også berørt i kendelsen af 25. november 2002 kan det imidlertid tænkes, at flere afdelinger i samme almene boligorganisation af forskellige grunde foretager et samlet indkøb af en artikel, som de alle har behov for at anskaffe. Det kan også tænkes, at flere afdelinger i forskellige boligorganisationer foretager et sådant samlet indkøb. I sådanne tilfælde opstår der dels spørgsmål om beregningen af et sådant samlet indkøbs værdi i relation til Indkøbsdirektivets tærskelværdi, dels spørgsmål, om hvem der skal anses som ordregiver, hvis indkøbet foretages gennem et EU-udbud. Med hensyn til spørgsmålet om beregningen af værdien af et samlet indkøb som omtalt i relation til Indkøbsdirektivets tærskelværdi bemærkes: Det afgørende er indkøbets samlede værdi, således at der skal foretages EUudbud, hvis værdien af et samlet indkøb som omtalt når op på Indkøbsdirektivets tærskelværdi. Dette følger bl.a. af EF-domstolens gentagne tilkendegivelser om, at udbudsdirektiverne skal fortolkes sådan, at deres effektive virkning tilgodeses. Det gælder uanset, om det er de enkelte afdelinger, vedkommende boligorganisation eller en koordinerende instans, der er ordregivende myndighed, jf. om dette spørgsmål straks nedenfor. Med hensyn til spørgsmålet, om hvem der skal anses for ordregiver, hvis et samlet indkøb som omtalt foretages gennem et EU-udbud, bemærkes: Som almindeligt udgangspunkt må det være de enkelte afdelinger, der skal træffe tildelingsbeslutningerne, og som derfor er ordregivende myndigheder i henhold til EU-udbudet. Hvis afdelingerne har overladt det til boligorganisationen eller en koordinerende instans som Boligkontoret at træffe tildelingsbeslutning, er det dog boligorganisationen eller den koordinerende instans, der er ordregivende myndighed i henhold til udbudet. De indkøb, som sagen drejer sig om, angik de samme artikler, ligesom indkøbene blev foretaget samtidig med fælles kravspecifikationer og med en fælles tekniske rådgivere. Indkøbene må derfor anses for et samlet indkøb. Værdien af det samlede indkøb oversteg Indkøbsdirektivets tærskelværdi, og de indklagede havde således pligt til at foretage indkøbet gennem et EUudbud, hvilket også skete.
9. Indkøbsdirektivet finder herefter anvendelse i sagen. Byggesagsbeskrivelsens henvisning til Tilbudsloven er uden betydning, allerede fordi denne henvisning må antages at sigte til vvs-entreprisen, der også var omfattet af byggesagsbeskrivelsen. | N-040830
Benny Hansens Tømrer- og Snedkerforretning | P3 | W2-1.b.2
NPL2-1.2.p1
NPL2-1.2.p2 | P3. Indklagede er et privat erhvervsdrivende anpartsselskab, som driver byggevirksomhed, og som ikke er omfattet af Tilbudsloven. Boligselskabet BSB Ølgod, Afdeling 11, er et almennyttigt boligselskab, som er omfattet af Tilbudsloven [and by the EU directives as a body governed by public law].
[Klageren har gjort gældende, at indklagede har gennemført byggeriet af boligerne på Boligselskabet BSB Ølgod, Afdeling 11’s vegne, at det pågældende boligbyggeri er offentligt støttet alment boligbyggeri, og at byggeriet som sådant er omfattet af Tilbudsloven, jf. Tilbudsloven § 1, stk. 2, 2. led. (incorrect assumption that the EU directives would not apply)] | N-030811
Kruse & Mørk | 1 | W2-1.b
NPL2-1.2 | 1. Der er ikke oplyst noget grundlag for at anse indklagede for et offentligretligt organ i henhold til artikel 1, b i Bygge- og anlægsdirektivet, og Klagenævnet lægger derfor til grund, at indklagede ikke et sådant offentligretligt organ. Indklagede er herefter ikke omfattet af tilbudslovens § 1, stk. 2. | N-980122
Unitron Scandinavia | 1+3+6 | G2-1.b.1-impl
G2-1.b.2-impl | 1. Klagenævnet må efter sagens oplysninger til lægge grund, at Danske Slagterier er køber af de omhandlede øremærker. Klagenævnet henser herved til, at Danske Slagterier har foretaget udbudsforretningen, atsvineproducenternes bestilling af levedyrsmærker sker hos Danske Slagterier, og svineproducenternes betaling for begge typer øremærker sker til Danske Slagterier.
.....
3. Der er ikke forelagt nærmere oplysninger om institutionen Danske Slagterier, men Klagenævnet må efter det fremkomne gå ud fra, at Danske Slagterier er en privat organisation med tilknytning til de danske landbrugsorganisationer, og at Danske Slagteriers drift ikke finansieres af det offentlige med mere end halvdelen. Der er herefter ikke grundlag for at anse Danske Slagterier som en ordregivende myndighed i henhold til indkøbsdirektivets artikel 1, hvilket klagerne heller ikke har gjort gældende.
.....
6. Klagenævnet kan ikke tiltræde klagernes synspunkt om, at Danske Slagteriers indkøb af øremærker ganske må sidestilles med indkøb, der foretages af en ordregivende myndighed i henhold til EU's indkøbsdirektiv, direktiv 93/36, og at indkøbsdirektivets artikel 1 derfor skal anvendes analogt. Klagenævnet henser herved til, at direktivets regler om, hvem der er ordregivende myndigheder, må anses for udtømmende. Den foreliggende situation svarer ikke til forholdene i den af klagerne påberåbte kendelse fra Klagenævnet af 4. juni 1996, der angik indkøb foretaget af kommuner. | N-960604-2
Håndværksrådet | 2 | G1-1.b.p1
G1-1.b.p2 | 2. Som sagen er forelagt for nævnet, lægges det til grund, at det arrangement, der er indgået mellem de to parter i prisaftalen, sammenholdt med de gældende regler i bistandslovens § 58, har fået virkning som en offentlig indkøbsaftale, indgået af en ordregivende myndighed.
.....
[Sagsfremstillingen: Indklagede har navnlig anført, at indklagede ikke er ordregiver i direktivets forstand - og i hvert fald ikke i dets daværende affattelse. Kommuneservice er en intern organisation og ikke en sammenslutning af lokale myndigheder eller et offentligretligt organ som opregnet i bilag I til direktivet. Indklagede er ej heller et andet forvaltingsretligt subjekt, idet man ikke er omfattet af forvaltnings- eller offentlighedsloven og ikke forfølger almennyttige formål.] | N-950531
Drejer | 3 | S2-1.b.p2 | 3. Under hensyn til betragtning 19 og 34 i præamblen til direktiv 90/531/EØF og under hensyn til at DGH efter det fremkomne ikke kan karakteriseres som en offentligretlig person i henhold til definitionen i art. 1, b) i direktiv 77/62/EØF, findes Lars Drejer ikke at have godtgjort, at der i sagen er sket overtrædelse af EUs udbudsregler.
[DGH blev i 1992 stiftet af A. Henriksen Shipping I/S, Hundested, Hundested Havn I/S og Grenå kommunale havn. Senere er Grenå kommune indtrådt som aktionær i stedet for Grenå havn. DGHs bestyrelse bestod oprindelig af en repræsentant for hver af de tre stiftere, men er senere blevet udvidet til 7 bestyrelsesmedlemmer, nemlig følgende:
Advokat Karl Stephensen som formand.
Per Gudme som repræsentant for Grenå Havn.
Poul Molich som repræsentant for Hundested Havn I/S.
Erik Valentin-Hansen som repræsentant for A. Henriksen Shipping I/S.
Jes Anker Mikkelsen som repræsentant for European Ferries Denmark A/S. Borgmesteren i Grenå kommune.
Borgmesteren i Hundested kommune.
De tre stiftere tegnede efter det oplyste ved stiftelsen af DGH hver en aktiekapital på 200.000 kr. Desuden har European Ferries Denmark A/S tegnet en aktiekapital på 200.000 kr. i DGH. Efter det oplyste er DGHs aktiekapital senere forhøjet eller vil blive det. De nærmere oplysninger herom er til dels fortrolige, men klagenævnet lægger efter det fremkomne til grund, at Hundested Havn er rent privatejet og ikke kommunal, at Hundested kommune ikke er aktionær i DGH, og at Grenå kommunes aktiepost i DGH er en minoritetsaktiepost.
Det bemærkes, at Indenrigsministeriet i skrivelse af 24. februar 1994 har meddelt tilladelse til Grenå kommunes indtrædelse som aktionær i DGH bl.a. på vilkår, at DGHs formål ikke er erhvervsøkonomisk, og at en kommune ikke har bestemmende indflydelse i DGH.] |
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