# C_2006310EN.01000401.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/4 |
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16.12.2006

EN

Official Journal of the European Union

C 310/4

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Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien (Austria) lodged on 22 September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH

(Case C-393/06)

(2006/C 310/06)

Language of the case: German

Referring court

Vergabekontrollsenat des Landes Wien

Parties to the main proceedings

Applicant: Ing. Aigner, Wasser-Wärme-Umwelt GmbH

Applicant:

Defendant: Fernwärme Wien GmbH

Defendant:

Questions referred

| 1. | Must Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) (OJ 2004 L 134, p. 1) (‘Directive 2004/17/EC’) be interpreted as meaning that a contracting entity which pursues one of the sectoral activities referred to in Article 3 of that directive also falls within the scope of that directive in relation to an activity pursued in parallel under competitive conditions? |
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1.

Must Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) (OJ 2004 L 134, p. 1) (‘Directive 2004/17/EC’) be interpreted as meaning that a contracting entity which pursues one of the sectoral activities referred to in Article 3 of that directive also falls within the scope of that directive in relation to an activity pursued in parallel under competitive conditions?

1

| 2. | In the event that this is the case only in respect of contracting authorities: must an undertaking such as Fernwärme Wien GmbH. be characterised as a body governed by public law within the meaning of Directive 2004/17/EC or Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (2) (OJ 2004 L 134, p. 114) (‘Directive 2004/18/EC’) if it provides district heating in a given area without any real competition, or must the market for domestic heating, which also includes energy sources such as gas, oil, coal etc., be taken into account? |
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2.

In the event that this is the case only in respect of contracting authorities: must an undertaking such as Fernwärme Wien GmbH. be characterised as a body governed by public law within the meaning of Directive 2004/17/EC or Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (2) (OJ 2004 L 134, p. 114) (‘Directive 2004/18/EC’) if it provides district heating in a given area without any real competition, or must the market for domestic heating, which also includes energy sources such as gas, oil, coal etc., be taken into account?

2

| 3. | Must an activity pursued under competitive conditions by a company which also pursues activities of a non-industrial or non-commercial nature be included within the scope of Directive 2004/17/EC or Directive 2004/18/EC if, through effective precautions such as separate balance sheets and accounts, cross-financing of the activities pursued under competitive conditions can be excluded? |
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3.

Must an activity pursued under competitive conditions by a company which also pursues activities of a non-industrial or non-commercial nature be included within the scope of Directive 2004/17/EC or Directive 2004/18/EC if, through effective precautions such as separate balance sheets and accounts, cross-financing of the activities pursued under competitive conditions can be excluded?

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(1)  OJ L, 134, p. 1.

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(2)  OJ L, 134, p. 114.

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