# C_2008142EN.01001101.xml

| 7.6.2008 | EN | Official Journal of the European Union | C 142/11 |
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7.6.2008

EN

Official Journal of the European Union

C 142/11

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Reference for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 28 February 2008 — Wall AG v Stadt Frankfurt am Main, Frankfurter Entsorgungs- und Service GmbH (FES)

(Case C-91/08)

(2008/C 142/17)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Wall AG

Applicant:

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

Defendants:

Other party to the proceedings: DSM Deutsche Städte Medien GmbH

Other party to the proceedings:

Questions referred

| 1. | Are the principle of equal treatment expressed inter alia in Articles 12 EC, 43 EC and 49 EC and the prohibition in Community law of discrimination on grounds of nationality to be interpreted as meaning that the consequent duties of transparency for public authorities, namely to use an appropriate degree of advertising to enable the award of service concessions to be opened up to competition and the impartiality of the procurement procedure to be reviewed (see the judgments of the Court of Justice in Case C-324/98 Telaustria, paragraphs 60 to 62; Case C-231/03 Coname, paragraphs 17 to 22; Case C-458/03 Parking Brixen, paragraphs 46 to 50; Case C-410/04 ANAV, paragraph 21; and C-260/04 Commission v Italy, paragraph 24), require national law to provide an unsuccessful tenderer with a claim to an order restraining an imminent breach of those duties and/or prohibiting the continuation of such a breach of duty? |
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1.

Are the principle of equal treatment expressed inter alia in Articles 12 EC, 43 EC and 49 EC and the prohibition in Community law of discrimination on grounds of nationality to be interpreted as meaning that the consequent duties of transparency for public authorities, namely to use an appropriate degree of advertising to enable the award of service concessions to be opened up to competition and the impartiality of the procurement procedure to be reviewed (see the judgments of the Court of Justice in Case C-324/98 Telaustria, paragraphs 60 to 62; Case C-231/03 Coname, paragraphs 17 to 22; Case C-458/03 Parking Brixen, paragraphs 46 to 50; Case C-410/04 ANAV, paragraph 21; and C-260/04 Commission v Italy, paragraph 24), require national law to provide an unsuccessful tenderer with a claim to an order restraining an imminent breach of those duties and/or prohibiting the continuation of such a breach of duty?

Telaustria

Coname

Parking Brixen

ANAV

Commission

Italy

| 2. | If Question 1 is answered in the negative: Do those duties of transparency form part of the customary law of the European Communities, in the sense that they are already applied continually and constantly, equally and generally, and are recognised as a binding rule by those concerned? |
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2.

If Question 1 is answered in the negative: Do those duties of transparency form part of the customary law of the European Communities, in the sense that they are already applied continually and constantly, equally and generally, and are recognised as a binding rule by those concerned?

| 3. | Do the duties of transparency mentioned in Question 1 require, in the case also of an intended amendment to a service concession contract — including the substitution of a subcontractor who was mentioned as part of the tender — that the negotiations on this are again opened up to competition with an appropriate degree of advertising, or what would be the criteria for requiring such an opening up? |
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3.

Do the duties of transparency mentioned in Question 1 require, in the case also of an intended amendment to a service concession contract — including the substitution of a subcontractor who was mentioned as part of the tender — that the negotiations on this are again opened up to competition with an appropriate degree of advertising, or what would be the criteria for requiring such an opening up?

| 4. | Are the principles and duties of transparency mentioned in Question 1 to be interpreted as meaning that in the case of service concessions, in the event of a breach of duty, a contract concluded as a result of the breach and intended to create or amend a continuing obligation must be terminated? |
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4.

Are the principles and duties of transparency mentioned in Question 1 to be interpreted as meaning that in the case of service concessions, in the event of a breach of duty, a contract concluded as a result of the breach and intended to create or amend a continuing obligation must be terminated?

| 5. | Are the principles and duties of transparency mentioned in Question 1 and Article 86(1) EC, referring also if necessary to Article 2(1)(b) and (2) of the Transparency Directive 80/723/EEC (1) and Article 1(9) of the Procurement Coordination Directive 2004/18/EC (2), to be interpreted as meaning that an undertaking is subject to those duties of transparency, as a public undertaking or contracting authority, if






  — | it was set up by a regional or local authority for the purpose of waste disposal and street cleaning but also operates in the free market, |
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5.

Are the principles and duties of transparency mentioned in Question 1 and Article 86(1) EC, referring also if necessary to Article 2(1)(b) and (2) of the Transparency Directive 80/723/EEC (1) and Article 1(9) of the Procurement Coordination Directive 2004/18/EC (2), to be interpreted as meaning that an undertaking is subject to those duties of transparency, as a public undertaking or contracting authority, if

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

| — | it 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, |
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it 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,

| — | the regional or local authority appoints only a quarter of the members of the supervisory board of the undertaking, including the chairman, and |
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the regional or local authority appoints only a quarter of the members of the supervisory board of the undertaking, including the chairman, and

| — | it achieves 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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it achieves 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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(1)  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); 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).

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(2)  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).

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