# C_2020255EN.01000601.xml

| 3.8.2020 | EN | Official Journal of the European Union | C 255/6 |
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3.8.2020

EN

Official Journal of the European Union

C 255/6

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Judgment of the Court (Fourth Chamber) of 28 May 2020 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Informatikgesellschaft für Software-Entwicklung (ISE) mbH v Stadt Köln

(Case C-796/18) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 2(1)(5) - Article 12(4) - Article 18(1) - Concept of contract for pecuniary interest - Contract between two contracting authorities pursuing common public interest objectives - Making available of software for the coordination of fire-fighting operations - Absence of monetary payment - Link to a cooperation agreement providing for the mutual provision of additional modules of this software free of charge - Principle of equal treatment - Prohibition on placing a private undertaking in a privileged position in relation to its competitors)

(2020/C 255/06)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Informatikgesellschaft für Software-Entwicklung (ISE) mbH

Defendant: Stadt Köln

In the presence of: Land Berlin

Operative part of the judgment

| 1. | Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, must be interpreted as meaning that an agreement which, first, provides for a contracting authority to make software available free of charge to another contracting authority and, second, is linked to a cooperation agreement under which each party to that agreement is required to make available free of charge to the other party any future developments of that software which it may devise, constitutes a ‘public contract’ within the meaning of Article 2(1)(5) of that Directive where it follows both from the terms of those agreements and from the applicable national legislation that the software will in principle be subject to adaptation |
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1.

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, must be interpreted as meaning that an agreement which, first, provides for a contracting authority to make software available free of charge to another contracting authority and, second, is linked to a cooperation agreement under which each party to that agreement is required to make available free of charge to the other party any future developments of that software which it may devise, constitutes a ‘public contract’ within the meaning of Article 2(1)(5) of that Directive where it follows both from the terms of those agreements and from the applicable national legislation that the software will in principle be subject to adaptation

| 2. | Article 12(4) of Directive 2014/24 must be interpreted as meaning that cooperation between contracting authorities may be excluded from the scope of the rules on the award of public contracts laid down by that directive where that cooperation relates to activities ancillary to public services which must be provided, even on an individual basis, by each member of that cooperation, provided that those ancillary activities contribute to the effective realisation of those public services. |
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2.

Article 12(4) of Directive 2014/24 must be interpreted as meaning that cooperation between contracting authorities may be excluded from the scope of the rules on the award of public contracts laid down by that directive where that cooperation relates to activities ancillary to public services which must be provided, even on an individual basis, by each member of that cooperation, provided that those ancillary activities contribute to the effective realisation of those public services.

| 3. | Article 12(4) of Directive 2014/24, read in conjunction with recital 33, second paragraph, and Article 18(1) of that directive, must be interpreted as meaning that cooperation between contracting authorities must not have the effect, in accordance with the principle of equal treatment, of placing a private undertaking in a privileged position in relation to its competitors. |
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3.

Article 12(4) of Directive 2014/24, read in conjunction with recital 33, second paragraph, and Article 18(1) of that directive, must be interpreted as meaning that cooperation between contracting authorities must not have the effect, in accordance with the principle of equal treatment, of placing a private undertaking in a privileged position in relation to its competitors.

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(1)  OJ C 93, 11.3.2019.

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