# C_2009193EN.01001401.xml

| 15.8.2009 | EN | Official Journal of the European Union | C 193/14 |
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15.8.2009

EN

Official Journal of the European Union

C 193/14

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Reference for a preliminary ruling from the Markkinaoikeus (Finland) lodged on 15 June 2009 — Mehiläinen Oy, Suomen Terveystalo Oyj v Oulun kaupunki

(Case C-215/09)

2009/C 193/19

Language of the case: Finnish

Referring court

Referring court

Markkinaoikeus

Parties to the main proceedings

Parties to the main proceedings

Applicants: Mehiläinen Oy, Suomen Terveystalo Oyj

Applicants:

Defendant: Oulun kaupunki

Defendant:

Questions referred

Questions referred

| 1. | Is an arrangement by which a municipal contracting authority concludes with a private undertaking in the form of a company which is separate from it a contract establishing a new undertaking in the form of a share company, on an equal share basis both in terms of ownership and of power of control, from which the municipal contracting authority commits itself, when setting up the company, to purchasing occupational health and wellbeing services for its own staff, on an overall assessment, an arrangement which must be put out to tender, on the ground that the general contract is a contract for the procurement of services within the meaning of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts and public service contracts (1), or is the arrangement to be regarded as the establishment of a joint venture and the transfer of the business activity of a municipal enterprise to which that directive and the consequent obligation to put out to tender are not applicable? |
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1.

Is an arrangement by which a municipal contracting authority concludes with a private undertaking in the form of a company which is separate from it a contract establishing a new undertaking in the form of a share company, on an equal share basis both in terms of ownership and of power of control, from which the municipal contracting authority commits itself, when setting up the company, to purchasing occupational health and wellbeing services for its own staff, on an overall assessment, an arrangement which must be put out to tender, on the ground that the general contract is a contract for the procurement of services within the meaning of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts and public service contracts (1), or is the arrangement to be regarded as the establishment of a joint venture and the transfer of the business activity of a municipal enterprise to which that directive and the consequent obligation to put out to tender are not applicable?

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| 2. | Should any significance in this case also be attached






  (a) | to the fact that the City of Oulu, as a municipal contracting authority, has undertaken to acquire in return for consideration the services referred to above over a four-year transitional period, after which the municipal contracting authority intends, according to its decision, once again to put out to tender the occupational health care services it requires; |
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2.

Should any significance in this case also be attached

(a)

to the fact that the City of Oulu, as a municipal contracting authority, has undertaken to acquire in return for consideration the services referred to above over a four-year transitional period, after which the municipal contracting authority intends, according to its decision, once again to put out to tender the occupational health care services it requires;

| (b) | to the fact that, prior to the arrangement in question, most of the turnover of the municipal enterprise that was part of the City of Oulu organisation came from occupational health care services other than those produced for the City’s own employees; |
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(b)

to the fact that, prior to the arrangement in question, most of the turnover of the municipal enterprise that was part of the City of Oulu organisation came from occupational health care services other than those produced for the City’s own employees;

| (c) | to the fact that the founding of the new company has been organised with the intention of transferring as a capital contribution the activity of the municipal enterprise, which comprises the production of occupational health care services both for the City’s employees and for private customers? |
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(c)

to the fact that the founding of the new company has been organised with the intention of transferring as a capital contribution the activity of the municipal enterprise, which comprises the production of occupational health care services both for the City’s employees and for private customers?

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(1)  OJ 2004 L 134, p. 114

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