| | 32004L0017: u3-2.2Apply to contracting entities    
| 32004L0017 - Utilities (3rd generation) | Article 2.2 | 2. This Directive shall apply to contracting entities:
(a) which are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 3 to 7;
(b) which, when they are not contracting authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 3 to 7, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State. | | 31993L0038 - Utilities (2nd generation) | Article 2.1 | Article 2
1. This Directive shall apply to contracting entities which:
(a) are public authorities or public undertakings and exercise one of the activities referred to in paragraph 2;
(b) when they are not public authorities or public undertakings, have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State. | | 31990L0531 - Utilities (1st generation) | Article A-2.1 | Article 2
1. This Directive shall apply to contracting entities which:
(a) are public authorities or public undertakings and exercise one of the activities referred to in paragraph 2;
(b) or, when they are not public authorities or public undertakings, have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State. |
| Case | Pte | Ref | Text | C-393/06
Ing. Aigner | 23-33 | U3-2.2-impl
U3-20.1 | 23. By this question, the referring court asks whether a contracting entity within the meaning of Directive 2004/17, which carries on activities in one of the sectors listed in Articles 3 to 7 of that directive, is required to apply the procedure laid down in that directive for the award of contracts to the activities carried out by that entity in parallel, under competitive conditions, in sectors not governed by those provisions.
24. In order to answer that question, it must be noted that Directives 2004/17 and 2004/18 have noteworthy differences with regard both to the entities subject to the rules laid down in those respective directives and to their nature and scope.
25. With regard, firstly, to the entities to which the rules of those directives apply, it should be noted that, unlike Directive 2004/18 which, by virtue of the first subparagraph of Article 1(9) thereof, applies to contracting authorities', Directive 2004/17 refers, in Article 2 thereof, to contracting entities'. It is apparent from Article 2(2)(a) and (b) that Directive 2004/17 applies not only to contracting entities which are contracting authorities', but also to those which are public undertakings' or undertakings which operate on the basis of special or exclusive rights granted by a competent authority of a Member State', in so far as all those entities pursue one of the activities listed in Articles 3 to 7 thereof.
26. Secondly, it follows from Articles 2 to 7 of Directive 2004/17 that the coordination for which it provides does not extend to all spheres of economic activity, but relates to specifically defined sectors, which, moreover, is confirmed by the fact that that directive is commonly referred to as the sectoral directive'. However, the scope of Directive 2004/18 includes almost all sectors of economic life, thus justifying its being commonly known as the general directive'.
27. In such circumstances, it must be stated at this early stage that the general scope of Directive 2004/18 and the restricted scope of Directive 2004/17 require the provisions of the latter to be interpreted narrowly.
28. The boundaries between the fields of application of those two directives are also drawn by explicit provisions. Thus, Article 20(1) of Directive 2004/17 provides that the latter does not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 3 to 7 thereof. The equivalent of that provision in Directive 2004/18 is Article 12(1), which provides that that directive does not apply to public contracts which are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of Directive 2004/17.
29. Thus, the field of application of Directive 2004/17 is strictly circumscribed, which does not permit the procedures laid down therein to be extended beyond that field of application.
30. Consequently, the abovementioned provisions leave no room for application, in the context of Directive 2004/17, of the approach known as contagion theory' which was developed following the judgment in Mannesmann Anlagenbau Austria and Others. That judgment was given by the Court in the context 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), that is to say in an area which at present falls within the ambit of Directive 2004/18.
31. Accordingly, as rightly observed by, inter alia, the Hungarian, Austrian and Finnish Governments and by the Commission of the European Communities, only those contracts awarded by an entity which is a contracting entity' within the meaning of Directive 2004/17, in connection with and for the exercise of activities in the sectors listed in Articles 3 to 7 of that directive, fall within the field of application thereof.
32. Moreover, that is the conclusion which emerges also from Joined Cases C462/03 and C463/03 Strabag and Kostmann [2005] ECR I5397, paragraph 37). In that judgment, the Court held that, if a contract does not concern the exercise of one of the activities governed by the sectoral directive, it will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts, as applicable.
33. Having regard to the foregoing, the answer to the first question must be 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 of that directive. | C-462/03 & C463/03
Strabag | 34-39 | U2-2.1
U2-6.1-impl | 34. By its two first questions, which may appropriately be dealt with together, the Bundesvergabeamt in substance raises the issue of the material scope of Directive 93/38. It is clear, both from the explanations given in the orders for reference and from the observations submitted to the Court, that by its questions concerning the meaning of the expressions operation' and provision' of transport networks, that body seeks to ascertain whether the infrastructure projects at issue in the main proceedings are among the activities mentioned in Article 2(2)(c) of the directive and whether the contracting entity may, as a result, derogate from the ordinary rules governing the award of procurement contracts laid down in Directive 93/37 in favour of those contained in Directive 93/38, authorising more extensive use of the negotiated procedure.
35. On this point it is first to be noted, that, according to Article 2(2)(a) of Directive 93/38, the latter applies to contracting entities which are public authorities or public undertakings and which exercise one of the activities referred to in paragraph 2 of that article.
36. Second, Article 4(1) of that directive makes it apparent that when awarding supply, works or service contracts, or organising design contests, the contracting entities are to apply procedures which are adapted to the provisions of the directive.
37. As the Commission has correctly noted in its written observations, reading those two provisions together shows that the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity. If the latter carries on one of the activities listed in Article 2(2) of Directive 93/38, and in so doing contemplates, which it is a matter for the national court to verify, the award of a supply, works or service contract or the organisation of a design contest, the provisions of this directive will apply to that contract or contest. If the contracting entity does not carry on one of those activities, the contract or contest will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts as the case may be.
38. Furthermore, that interpretation is expressly supported both by the very wording of Article 6(1) of Directive 93/38, which states that the directive is not to apply to contracts or design contests which the contracting entities award or organise for purposes other than the pursuit of their activities as described in Article 2(2) of that directive and by reading the 13th recital in the preamble thereto, which states that the directive is not to extend to activities of those entities which either fall outside the water, energy, transport or telecommunications sectors or which fall within those sectors but are nevertheless directly exposed to competitive forces on markets to which entry is unrestricted.
39. Having regard to the foregoing considerations, the answer to be given to the two first questions referred in each of the cases in the main proceedings is that where a contracting entity exercising one of the activities mentioned in Article 2(2) of Directive 93/38 contemplates, in the exercise of that activity, the award of a supply, works or service contract or the organisation of a design contest, that contract or contest is governed by the provisions of this directive. | C-462/03 & C463/03
Strabag | 40-43 | U2-2.1
U2-6.1-impl | 40. By its third question, which is worded identically in the two cases in the main proceedings, the national body seeks to ascertain, in substance, whether it is bound to refrain from applying a provision of domestic law that, contrary to the tenor of Article 2(2)(c) of Directive 93/38, provides that the provision of networks providing a service to the public in the field of transport by railway also constitutes an activity falling within a sector covered by that directive.
41. That question relies on the premiss that infrastructure works such as those at issue in the main proceedings do not fall within the material ambit of Directive 93/38, given that, according to the Bundesvergabeamt, such work must be treated as provision' of transport networks and that such activity does not appear among those expressly listed in Article 2(2)(c) of that directive.
42. Now that premiss is mistaken. As has been noted in paragraph 37 above, the applicability of Directive 93/38 depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity.
43. In the circumstances there is no need to answer the third question. |
| Case | Pte | Ref | Text | N-970912
Abtech | 2 | U2-2.1-impl | 2. Det lægges efter det fremkomne til grund, hvilket heller ikke er bestridt, at Sydbus skal være køber af de omhandlede læskærme. |
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