# C_2006165EN.01000501.xml

| 15.7.2006 | EN | Official Journal of the European Union | C 165/5 |
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15.7.2006

EN

Official Journal of the European Union

C 165/5

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Judgment of the Court (First Chamber) of 11 May 2006 (Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia (Italy)) — Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio, AGESP SpA

(Case C-340/04) (1)

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(Directive 93/36/EEC - Public supply contracts - Award of contract without a call for tenders - Award of the contract to an undertaking in which the contracting authority has a shareholding)

(2006/C 165/09)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Carbotermo SpA, Consorzio Alisei

Applicants:

Defendants: Comune di Busto Arsizio, AGESP SpA

Defendants:

Intervener: Associazione Nazionale Imprese Gestione servizi tecnici integrati (AGESI)

Intervener:

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale della Lombardia (Italy) — Interpretation of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and of Article 13 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) — Direct award of a contract for the supply and management of fuel and heating for heating appliances in buildings belonging to a municipality — Award to a company the shares of which are held by another company in which the municipality is a majority shareholder

Operative part of the judgment

The Court rules:

| 1. | Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts precludes the direct award of a public supply and service contract, the main value of which lies in supply, to a joint stock company whose Board of Directors has ample managerial powers which it may exercise independently and whose share capital is, at present, held entirely by another joint stock company whose majority shareholder is, in turn, the contracting authority. |
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1.

Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts precludes the direct award of a public supply and service contract, the main value of which lies in supply, to a joint stock company whose Board of Directors has ample managerial powers which it may exercise independently and whose share capital is, at present, held entirely by another joint stock company whose majority shareholder is, in turn, the contracting authority.

| 2. | Article 13 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectorsmust not be applied in the assessment of the requirement relating to the inapplicability of Directive 93/36, according to which the undertaking to which a supply contract was awarded directly must carry out the essential part of its activities with the controlling authority. |
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2.

Article 13 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectorsmust not be applied in the assessment of the requirement relating to the inapplicability of Directive 93/36, according to which the undertaking to which a supply contract was awarded directly must carry out the essential part of its activities with the controlling authority.

| 3. | In order to determine whether an undertaking carries out the essential part of its activities with the controlling authority, for the purpose of deciding on the applicability of Directive 93/36, account must be taken of all the activities which that undertaking carries out on the basis of an award made by the contracting authority, regardless of who pays for those activities, whether it be the contracting authority itself or the user of the services provided; the territory where the activities are carried out is irrelevant. |
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3.

In order to determine whether an undertaking carries out the essential part of its activities with the controlling authority, for the purpose of deciding on the applicability of Directive 93/36, account must be taken of all the activities which that undertaking carries out on the basis of an award made by the contracting authority, regardless of who pays for those activities, whether it be the contracting authority itself or the user of the services provided; the territory where the activities are carried out is irrelevant.

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(1)  OJ C 251, 09.10.2004.

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