# C_2010148EN.01000401.xml

| 5.6.2010 | EN | Official Journal of the European Union | C 148/4 |
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5.6.2010

EN

Official Journal of the European Union

C 148/4

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Judgment of the Court (Grand Chamber) of 13 April 2010 (reference for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Wall AG v Stadt Frankfurt am Main, Frankfurter Entsorgungs- und Service GmbH (FES)

(Case C-91/08) (1)

1

(Service concessions - Award procedure - Obligation of transparency - Subsequent replacement of a subcontractor)

2010/C 148/05

Language of the case: German

Referring court

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Parties to the main proceedings

Applicant: Wall AG

Applicant:

Defendants: Stadt Frankfurt am Main, Frankfurter Entsorgungs- und Service GmbH (FES)

Defendants:

Itervener: Deutsche Städte Medien (DSM) GmbH

Itervener:

Re:

Re:

Reference for a preliminary ruling — Landgericht Frankfurt am Main (Germany) — Interpretation of Articles 12 EC, 43 EC, 49 EC and 86(1) EC, the principles of transparency and equal treatment and the prohibition of discrimination, Article 2(1)(b) and (2) of Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35), as amended by Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (OJ 2000 L 193, p. 75), and Article 1(9) of 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 (OJ 2004 L 134, p. 114) — Award of service concessions — Concept of public undertaking — Consequences for performance of the contract of failure to comply with the obligation of transparency on a subsequent change of subcontractor

Operative part of the judgment

Operative part of the judgment

| 1. | Where amendments to the provisions of a service concession contract are materially different in character from those on the basis of which the original concession contract was awarded, and are therefore such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, all necessary measures must be taken, in accordance with the national legal system of the Member State concerned, to restore the transparency of the procedure, which may extend to a new award procedure. If need be, a new award procedure should be organised in a manner appropriate to the specific features of the service concession involved, and should ensure that an undertaking located in another Member State has access to sufficient information on that concession before it is awarded. |
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1.

Where amendments to the provisions of a service concession contract are materially different in character from those on the basis of which the original concession contract was awarded, and are therefore such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, all necessary measures must be taken, in accordance with the national legal system of the Member State concerned, to restore the transparency of the procedure, which may extend to a new award procedure. If need be, a new award procedure should be organised in a manner appropriate to the specific features of the service concession involved, and should ensure that an undertaking located in another Member State has access to sufficient information on that concession before it is awarded.

| 2. | Where an undertaking which is the holder of a concession concludes a contract for services within the scope of a concession it has been awarded by a regional or local authority, the obligation of transparency deriving from Articles 43 EC and 49 EC and from the principles of equal treatment and non-discrimination on grounds of nationality does not apply if that undertaking






  — | was set up by the regional or local authority for the purpose of waste disposal and street cleaning but also operates in the market, |
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2.

Where an undertaking which is the holder of a concession concludes a contract for services within the scope of a concession it has been awarded by a regional or local authority, the obligation of transparency deriving from Articles 43 EC and 49 EC and from the principles of equal treatment and non-discrimination on grounds of nationality does not apply if that undertaking

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was set up by the regional or local authority for the purpose of waste disposal and street cleaning but also operates in the market,

| — | belongs to that regional or local authority to the extent of a 51 % holding, but decisions of shareholders can be taken only by a three-quarters majority of votes at a general meeting of the company, |
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belongs to that regional or local authority to the extent of a 51 % holding, but decisions of shareholders can be taken only by a three-quarters majority of votes at a general meeting of the company,

| — | has only a quarter of the members of its supervisory board, including the chairman, appointed by the regional or local authority, and |
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has only a quarter of the members of its supervisory board, including the chairman, appointed by the regional or local authority, and

| — | obtains more than half its turnover from bilateral contracts for waste disposal and street cleaning in the territory of that regional or local authority, which reimburses itself by means of municipal taxes on its residents. |
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obtains more than half its turnover from bilateral contracts for waste disposal and street cleaning in the territory of that regional or local authority, which reimburses itself by means of municipal taxes on its residents.

| 3. | The principles of equal treatment and non-discrimination on grounds of nationality enshrined in Articles 43 EC and 49 EC and the consequent obligation of transparency do not require the national authorities to terminate a contract or the national courts to make a restraining order in every case of an alleged breach of that obligation in connection with the award of service concessions. It is for the domestic legal system to regulate the legal procedures for safeguarding the rights which individuals derive from that obligation in such a way that those procedures are no less favourable that similar domestic procedures and do not make the exercise of those rights practically impossible or excessively difficult. The obligation of transparency flows directly from Articles 43 EC and 49 EC, which have direct effect in the domestic legal systems of the Member States and take precedence over any contrary provision of national law. |
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3.

The principles of equal treatment and non-discrimination on grounds of nationality enshrined in Articles 43 EC and 49 EC and the consequent obligation of transparency do not require the national authorities to terminate a contract or the national courts to make a restraining order in every case of an alleged breach of that obligation in connection with the award of service concessions. It is for the domestic legal system to regulate the legal procedures for safeguarding the rights which individuals derive from that obligation in such a way that those procedures are no less favourable that similar domestic procedures and do not make the exercise of those rights practically impossible or excessively difficult. The obligation of transparency flows directly from Articles 43 EC and 49 EC, which have direct effect in the domestic legal systems of the Member States and take precedence over any contrary provision of national law.

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(1)  OJ C 142, 07.06.2008.

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