# C_2004251EN.01000602.xml

| 9.10.2004 | EN | Official Journal of the European Union | C 251/6 |
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9.10.2004

EN

Official Journal of the European Union

C 251/6

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.)

(Case C-340/04)

(2004/C 251/12)

Reference has been made to the Court of Justice of the European Communities by order of 27 May 2004 of the Tribunale Amministrativo Regionale della Lombardia, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the case of Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.) on the following questions:

| (1) | Is the direct award of a contract for the supply of fuel for heating appliances in buildings owned by or within the competence of the Municipality, and relating to operation, supervision and maintenance (the main value of which lies in supply), to a joint stock company whose capital is, at present, held entirely by another joint stock company, of which the awarding Municipality is, for its part, the major shareholder (with 99.98 % of the shares), or to a company (AGESP) in which a direct holding is owned not by the public authority but by another company (AGESP Holding), 99.98 % of whose capital is presently owned by the public administration, compatible with Directive 93/36/EEC (1)? |
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(1)

Is the direct award of a contract for the supply of fuel for heating appliances in buildings owned by or within the competence of the Municipality, and relating to operation, supervision and maintenance (the main value of which lies in supply), to a joint stock company whose capital is, at present, held entirely by another joint stock company, of which the awarding Municipality is, for its part, the major shareholder (with 99.98 % of the shares), or to a company (AGESP) in which a direct holding is owned not by the public authority but by another company (AGESP Holding), 99.98 % of whose capital is presently owned by the public administration, compatible with Directive 93/36/EEC (1)?

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| (2) | Must the requirement that the undertaking to which the supply contract is awarded directly carry out the essential part of its activities with the controlling authority be ascertained by applying Article 13 of Directive 93/38/EC (2) and can it be concluded that it has been satisfied where that undertaking derives the majority of its turnover from the controlling public authority or, alternatively, in the territory of that authority? |
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(2)

Must the requirement that the undertaking to which the supply contract is awarded directly carry out the essential part of its activities with the controlling authority be ascertained by applying Article 13 of Directive 93/38/EC (2) and can it be concluded that it has been satisfied where that undertaking derives the majority of its turnover from the controlling public authority or, alternatively, in the territory of that authority?

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(1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts.

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(2)  OJ 1993, L 199 of 9.8.1993, p. 1.

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