# C_2007056EN.01000402.xml

| 10.3.2007 | EN | Official Journal of the European Union | C 56/4 |
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10.3.2007

EN

Official Journal of the European Union

C 56/4

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Judgment of the Court (First Chamber) of 18 January 2007 (reference for a preliminary ruling from the Tribunal administratif de Lyon, France) — Jean Auroux, Marie-Hélène Riamon, Christian Avocat, Laure Deroche, Pascal Mirabel, Vladimir Serdeczny, Paul Perard, Dolorès Ponramon, Elisabeth Roche v Commune de Roanne

(Case C-220/05) (1)

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(Public procurement - Directive 93/37/EEC - Award without call for tenders - Contract for the implementation of a development project concluded between two contracting authorities - Definition of ‘public works contract’ and ‘work’ - Method of calculation of the value of the contract)

(2007/C 56/07)

Language of the case: French

Referring court

Tribunal administratif de Lyon, France

Parties to the main proceedings

Applicants: Jean Auroux, Marie-Hélène Riamon, Christian Avocat, Laure Deroche, Pascal Mirabel, Vladimir Serdeczny, Paul Perard, Dolorès Ponramon, Elisabeth Roche

Applicants:

Defendant: Commune de Roanne

Defendant:

intervening party: Société d'équipement du département de la Loire (SEDL)

intervening party:

Re:

Reference for a preliminary ruling — Tribunal Administratif de Lyon — Interpretation of Articles 1 and 6 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) — Public development agreement concluded in the public interest between two contracting authorities for the realisation of a development procedure under which the latter contracting authority carries out works designed to meet the requirements of the former, with the former authority acquiring ownership in all of the works that have not been assigned to third parties on the expiry of the procedure — Methods for assessing the value of the market in order to set a threshold for the application of the award procedures — Construction of a leisure complex and a car park

Operative part of the judgment

| 1) | An agreement by which a first contracting authority entrusts a second contracting authority with the execution of a work constitutes a public works contract within the meaning of Article 1(a) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, regardless of whether or not it is anticipated that the first contracting authority is or will become the owner of all or part of that work. |
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1)

An agreement by which a first contracting authority entrusts a second contracting authority with the execution of a work constitutes a public works contract within the meaning of Article 1(a) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, regardless of whether or not it is anticipated that the first contracting authority is or will become the owner of all or part of that work.

| 2) | In order to determine the value of a contract for the purpose of Article 6 of Directive 93/37, as amended by Directive 97/52, account must be taken of the total value of the works contract from the point of view of a potential tenderer, including not only the total amounts to be paid by the contracting authority but also all the revenue received from third parties. |
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2)

In order to determine the value of a contract for the purpose of Article 6 of Directive 93/37, as amended by Directive 97/52, account must be taken of the total value of the works contract from the point of view of a potential tenderer, including not only the total amounts to be paid by the contracting authority but also all the revenue received from third parties.

| 3) | A contracting authority is not exempt from using the procedures for the award of public works contracts laid down in Directive 93/37, as amended by Directive 97/52, on the ground that, in accordance with national law, the agreement may be concluded only with certain legal persons, which themselves have the capacity of contracting authority and which will be obliged, in turn, to apply those procedures to the award of any subsequent contracts. |
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3)

A contracting authority is not exempt from using the procedures for the award of public works contracts laid down in Directive 93/37, as amended by Directive 97/52, on the ground that, in accordance with national law, the agreement may be concluded only with certain legal persons, which themselves have the capacity of contracting authority and which will be obliged, in turn, to apply those procedures to the award of any subsequent contracts.

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(1)  OJ C 193, 6.8.2005.

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