Opinion of the Advocate General — ECLI:EU:C:2020:47
Date: 2020-01-29
Language of the case: German
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-796/18 — 1 
Case C-796/18 
Request for a preliminary ruling 
Date lodged: 
19 December 2018 
Referring court: 
Oberlandesgericht Düsseldorf (Germany) 
Date of the decision to refer: 
28 November 2018 
Applicant: 
Informatikgesellschaft für Software-Entwicklung (ISE) mbH 
Defendant: 
Stadt Köln 
  
[...] 
THE OBERLANDESGERICHT DÜSSELDORF 
(HIGHER REGIONAL COURT, DÜSSELDORF) 
ORDER 
In the procurement review proceedings 
Informatikgesellschaft für Software-Entwicklung (ISE) mbH, [...] Aachen, 
applicant and appellant, 
[...] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 11. 2018 — CASE C-796/18 
 
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Stadt Köln (City of Cologne), [...] 
defendant and respondent, 
[...] 
also party to the proceedings: 
Land Berlin, [...] 
joined party, 
[Or. 2] 
the Vergabesenat (Chamber which has jurisdiction over the award of public 
contracts) of the Oberlandesgericht Düsseldorf (Higher Regional Court, 
Düsseldorf) […] has made the following 
order: 
The appeal proceedings are stayed in order to enable preliminary-ruling 
proceedings to be conducted before the Court of Justice of the European Union. 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling in relation to the interpretation of 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, with Questions 2 and 3 
requiring an answer only if Question 1 is answered in the affirmative: 
1. Does the provision of software by one public administrative authority to 
another public administrative authority, which is agreed in writing and 
linked to a cooperation agreement, constitute a ‘public contract’ within the 
meaning of Article 2.1(5) of Directive 2014/24/EU or a contract within the 
meaning of Article 12(4) of that directive which — at least initially, subject 
to Article 12(4)(a) to (c) thereof — comes within the scope of the directive 
if, although the software recipient does not have to pay a price or 
reimbursement costs for the software, the cooperation agreement connected 
with the provision of the software provides that each cooperation partner — 
and therefore also the software recipient — is required to make available to 
the other partner, free of charge, any of its own further developments of the 
software that it may create — but is not obliged to create — in the future? 
2. Pursuant to Article 12(4)(a) of Directive 2014/24/EU, does the subject 
matter of the cooperation of the participating contracting authorities have to 
be the actual public services that are to be provided [Or. 3] to citizens and 
must be provided jointly, or is it sufficient if the cooperation relates to 
INFORMATIKGESELLSCHAFT FÜR SOFTWARE-ENTWICKLUNG 
 
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activities that in some way serve the public services that are to be provided 
in the same way but do not necessarily have to be provided jointly? 
3. Does a so-called — unwritten — prohibition on placing a party in a position 
of advantage (‘Besserstellungsverbot’) apply in the context of Article 12(4) 
of Directive 2014/24/EU and, if so, with what content does it apply? 
Grounds 
I. 
1 In the second half of 2016, the defendant, the largest city in Nordrhein-Westfalen 
(North Rhine-Westphalia), started looking for new public safety answering point 
software for its professional fire brigade. It considered, inter alia, the IGNIS Plus 
software of Sopra Steria Consulting GmbH (SSC), which was used by the joined 
party. The joined party, a city-state and small Federal Land, maintains Germany’s 
largest professional fire brigade. The agreement between the joined party and SSC 
enables the joined party to pass the IGNIS Plus software on to other authorities 
with security responsibilities (Behörden und Organisationen mit 
Sicherheitsaufgaben; ‘BOS’) free of charge. 
2 The defendant’s employees responsible for the decision opted to procure IGNIS 
Plus. One employee stated that the transfer of software by one public body to 
another free of charge does not constitute a procurement procedure for which 
invitations to tender must be issued. He referred to the so-called Kiel decisions of 
1979. Via these decisions, a committee composed of the Federation, Länder and 
municipalities established the principles for the exchange of software between 
public administrative authorities. These included the principle of general 
reciprocity, according to which software developments in respect of which 
commercialisation by the authorities is not permitted are passed on to one another 
without the need to allocate costs. This is based on the expectation that the give 
and take between the public administrative authorities balances out because the 
administrative authorities are not in competition with one another. [Or. 4] 
3 On 10 September 2017, the defendant and the joined party entered into a contract 
for the provision of software (contract for the provision of EVB-IT) in relation to 
the permanent provision and use of the software IGNIS Plus for no consideration. 
That contract includes the following provisions: 
4 ‘1. Subject matter of the contract 
The following provisions apply to the permanent provision and use of the 
customised software “IGNIS Plus”. The software provider holds the rights 
over this software. 
The customised software “IGNIS Plus” is the software provider’s public 
safety answering point software for emergency calls, scheduling and 
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operational tracking for activities of the fire department in firefighting, 
technical assistance, emergency rescue and disaster control. [...] 
5 2. Nature and scope of performance 
2.1 The software provider shall provide the software recipient with the 
customised software “IGNIS Plus” for the purpose of the agreements in the 
cooperation contract. [...] 
6 4. Remuneration for the provision 
The customised software “IGNIS Plus” is to be provided for use as public 
safety answering point software for no consideration. […]’. 
7 On the same day, the defendant and the joined party also entered into a 
cooperation agreement, the “IGNIS Plus” software cooperation contract. It 
includes the following provisions: 
8 ‘Clause 1 Purpose of the willingness to cooperate 
[…] The partners have chosen to create an equal partnership and, if 
necessary, show a willingness to compromise in order to adapt the software 
to the respective requirements of the partner and make it available to the 
cooperation partner. […][Or. 5] 
9 Clause 2 Definition of the objective of the cooperation 
The objective pursued by the cooperation partners is to implement the public 
safety answering point software “IGNIS Plus” as a computer-aided dispatch 
system in the control centres of the fire department. The software system can 
be extended to include further technical functionalities as modules and 
provided to the other cooperation partners for use on a cost-neutral basis. 
[...] 
10 Clause 5 Structure of the cooperation 
[…] The base software shall be provided on a cost-neutral basis. 
Supplementary and developmental technical modules shall be provided to 
the cooperation partners on a cost-neutral basis. 
The adaptation of the base software and the modules to their own process 
sequences must be independently commissioned and financed. 
[...] 
[...] 
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The cooperation agreement is binding only together with the EVB-IT 
contract as a single document.’ 
11 Soon after, the applicant, which develops and offers for sale public safety 
answering point software for BOS, asked the defendant for information regarding 
the procurement of the new public safety answering point software, which it had 
learned of through the media. The defendant referred to the free-of-charge 
provision of IGNIS Plus by the joined party. 
12 The applicant subsequently submitted an application for review to the 
Vergabekammer Rheinland (Rhineland Public Procurement Board) with the aim 
of having the conclusion of the contracts declared to be ineffective. It asserted that 
public procurement law was applicable to the contracts between the defendant and 
the joined party, which created a legal entity, with the result that the procurement 
should have been subject to a Europe-wide tendering procedure. The defendant 
therefore awarded a public supply contract that exceeded the relevant threshold. 
The agreement was a contract for pecuniary interest. The term must be interpreted 
broadly. The participation of the defendant in the further development of the 
software provided constituted [Or. 6] a sufficient pecuniary benefit. Moreover, 
the pecuniary interest arose from the connection with the follow-up contract to be 
awarded in relation to the required adaptation of the software to the defendant’s 
requirements. 
13 By decision of 20 March 2018 [...], the Public Procurement Board rejected the 
application for review. As grounds, it stated that the application for review was 
inadmissible from the outset. There was no recourse to the bodies responsible for 
reviewing the award of public contracts. The contracts between the defendant and 
the joined party, which created a legal entity, did not constitute a public contract 
within the meaning of public procurement law, owing to the lack of pecuniary 
interest. They did not constitute a bilaterally binding contract, but rather a 
framework of equal cooperation in which the public safety answering point 
software was provided for no consideration. The cooperation lacked the 
synallagmatic connection between performance and consideration, because the 
two partners had the same rights and obligations within the framework of the 
cooperation. 
14 The applicant immediately lodged an appeal against the decision of the Public 
Procurement Board before the Higher Regional Court, Düsseldorf. 
15 As grounds, the applicant stated that the agreement between the defendant and the 
joined party was a contract for pecuniary interest. The joined party did not wish to 
provide the software without receiving its own benefit, since otherwise it could 
have confined itself to a gift. The pecuniary benefit acquired by the joined party 
for providing the software arose from the fact that the defendant was obliged, on 
the basis of the cooperation agreement, to make supplementary or developmental 
software modules developed by it available to the joined party free of charge. 
Moreover, the Public Procurement Board wrongly disregarded the fact that the 
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procurement of the base software entailed the commissioning of the producer with 
follow-up contracts. Only the software producer came into consideration for the 
adaptation, support and maintenance of the software — this is in dispute between 
the parties, however. A third party would not be able to support and further 
develop the software at a commercially viable cost. Consequently, the judgment 
under public procurement law could not be confined to the procurement of the 
base software. [Or. 7] 
16 The defendant defends the decision of the Public Procurement Board as being 
correct. Were the agreement between it and the joined party to be regarded as 
being for pecuniary interest, it would not come within the scope of public 
procurement law owing to the exclusion under Paragraph 108(6) of the Gesetz 
gegen Wettbewerbsbeschränkungen (Law against restraints of competition; ‘the 
GWB’). 
17 However, the applicant considers that the requirements of Paragraph 108(6) of the 
GWB have not been met and also believes that the defendant has breached the so-
called prohibition on placing a party in a position of advantage. The 
implementation of the cooperation would give a private third party, namely SSC, 
an undue advantage with regard to the award of the future services of adapting and 
supporting the software used by the defendant. 
II. 
18 In the view of the present Chamber, the success of the appeal depends on the 
answer to the questions referred. For that reason, before a decision can be taken, 
the proceedings must be stayed and a preliminary ruling obtained from the Court 
of Justice of the European Union pursuant to point (b) of the first paragraph and 
the second paragraph of Article 267 TFEU. The following legal considerations 
play a role in the order for reference: 
1. 
19 Pursuant to the first sentence of Paragraph 106(1) of the GWB in the version 
published on 26 June 2013 (Bundesgesetzblatt (Federal Law Gazette) I, p. 1750, 
corr. p. 3245; last amended by the law of 12 July 2018, Federal Law Gazette I, 
p. 1151), recourse to the bodies responsible for reviewing the award of public 
contracts, which include the Vergabesenat (Chamber which has jurisdiction over 
the award of public contracts), is available in relation to the award of public 
contracts that have a contract value exclusive of value-added tax estimated to be 
equal to or greater than the established thresholds. The term ‘öffentlicher Auftrag’ 
(public contract) is defined in greater detail in Paragraph 103(1) of the GWB. 
Pursuant to that provision, public contracts are contracts for pecuniary interest 
between contracting authorities and undertakings in relation to the purchase of 
services having as their object the supply of products, the execution of works or 
the provision of services. 
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20 Pursuant to Paragraph 108(6) of the GWB, recourse to the bodies responsible for 
reviewing the award of public contracts is not available in relation to contracts 
entered into between [Or. 8] two or more contracting authorities if, quoted 
verbatim, 
21 ‘1. the contract establishes or implements a cooperation between the 
participating contracting authorities with the aim of ensuring that the public 
services which they have to perform are provided with a view to achieving 
objectives that are held in common, 
22 2. the implementation of the cooperation pursuant to point 1 is governed 
solely by considerations relating to the public interest; and 
23 3. the contracting authorities perform on the market less than 20% of the 
activities concerned by the cooperation pursuant to point 1.’ 
24 In the light of these provisions, the applicant’s appeal could be successful if, 
contrary to the view taken by the Public Procurement Board, it were found that the 
requirements of the first sentence of Paragraph 106(1) and Paragraph 103(1) of the 
GWB were satisfied and, at the same time, the requirements of the exclusion 
under Paragraph 108(6) of the GWB were not satisfied. 
2. 
25 The specific legal background to the questions referred is as follows: 
(a) 
26 The first question referred can be explained by the present Chamber’s doubts 
surrounding the correct understanding of the term ‘public contract’ pursuant to 
Article 2.1(5) of Directive 2014/24/EU and the term ‘contract’ within the meaning 
of Article 12(4) of the directive. 
27 The parties to the proceedings are in dispute as to whether the contracts between 
the defendant and the joined party have as their object an ‘öffentlicher Auftrag’ 
(public contract) within the meaning of the first sentence of Paragraph 106(1) and 
Paragraph 103(1) of the GWB. As the term ‘öffentlicher Auftrag’ (public contract) 
used in those provisions is defined by European law, the correct understanding of 
the term depends on the understanding of the same term in Article 2.1(5) of 
Directive 2014/24/EU. 
28 In its previous case-law — adopting a European-law equivalent of this view — 
the present Chamber has advocated a broad understanding [Or. 9] of contracts for 
pecuniary interest which characterise public contracts within the meaning of 
Paragraph 103(1) of the GWB. It has regarded any legal relationship of reciprocal 
performance as being sufficient. The legally connected performance of each party 
has not had to have a relationship of mutual dependence in the manner of a 
conventional synallagmatic contract, that is to say, interdependence between the 
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purpose of the performance of each party on the basis of the ‘do ut des’ (‘I give in 
order that you may give’)principle [...]. For something to be for pecuniary interest, 
the assumption of any type of obligation to provide monetary consideration has 
been sufficient [...]. 
29 According to this, it would have to be found that a contract for pecuniary interest 
between the defendant and the joined party exists in the present case. The present 
Chamber takes the view that the contracts between them create a legal entity (cf. 
also Court of Justice, judgment of 21 December 2016 — C-51/15 [Remondis], 
EU:C:2016:985, paragraph 37). It is true that they do not follow the conventional 
synallagma, because the provision of software leads to cooperation that gives rise 
to entitlements only if — and this cannot be forced — one of the cooperation 
partners enhances the software with functionalities. However, the defendant’s 
offer of cooperation — which, in the view taken by the present Chamber, is for 
pecuniary interest, despite the uncertainty surrounding further developments of the 
software in the future — may be regarded as a requirement of the provision of 
software by the joined party which is sufficient for the legal connection. The 
present Chamber takes the view that it is not only the reciprocal willingness of the 
defendant and joined party to cooperate that is legally connected. The view taken 
above would have the consequence that the requirements of the exclusion under 
Paragraph 108(6) of the GWB would have to be assessed. 
30 However, on account of the statements of the Court of Justice in the judgment of 
21 December 2016 — C-51/15 — and the preceding statements of Advocate 
General P. Mengozzi regarding the terms ‘public contract’ and ‘contract for 
pecuniary interest’, the present Chamber considers that it is currently precluded 
from taking a final decision. It might be possible to garner from the 
aforementioned judgment and the Opinion of the Advocate General an 
understanding of the terms ‘public contract’ and ‘contract for pecuniary interest’ 
in Article 2.1(5) of Directive 2014/24/EU that is narrower than that previously 
adopted by the present Chamber and that [Or. 10] does not cover situations such 
as the one to be examined in the present case. 
31 Uncertainties in interpretation also arise for the present Chamber because the 
aforementioned judgment of the Court of Justice was not delivered on the basis of 
Directive 2014/24/EU. Article 12(4) of Directive 2014/24/EU excludes a contract 
concluded exclusively between two contracting authorities from the applicability 
of the directive if the requirements specified in Article 12(4)(a) to (c) have been 
met. The contract is not referred to as a contract for pecuniary interest in 
Article 12(4). This might suggest that forms of cooperation between contracting 
authorities which — as is the case here — go beyond the confines of conventional 
synallagmatic contracts do not have to be excluded from the scope of Directive 
2014/24/EU solely because of the absence of a contract, or public contract, for 
pecuniary interest [...]. 
32 The present Chamber proposes that the answer to the question referred be oriented 
in this direction. 
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33 The present Chamber does not believe that it is the case that it is unnecessary to 
answer the first question referred for the reason that the contracts for the 
adaptations and support for the IGNIS Plus to be awarded by the defendant are to 
be regarded as being for pecuniary interest. As they are independent contractual 
agreements with third parties that are to be considered in isolation and not 
together with the provision of the software, the present Chamber takes the view 
that they do not provide any indication as to whether it can be found that a public 
contract resides in the relationship between the defendant and the joined party. 
(b) 
34 Questions 2 and 3 referred, which are to be answered if Question 1 is answered in 
the affirmative, concern specific questions of interpretation regarding 
Article 12(4) of Directive 2014/24/EU. The understanding of the exclusion under 
Paragraph 108(6) of the GWB, by means of which the German legislature 
implemented the provision from the directive using virtually identical wording, 
depends on the answers. 
35 Question 2 referred concerns the subject matter of the cooperation between the 
participating contracting authorities that is referred to in Article 12(4) of Directive 
2014/24/EU. Views on this point differ in the literature regarding Paragraph 108 
of the GWB and amongst the parties to the [Or. 11] proceedings. Thus, it is 
assumed that so-called ancillary activities are not sufficient as the subject matter 
of the cooperation [...], but rather there must be cooperation between the 
contracting authorities in the provision of the public services themselves. 
36 On the basis of a comparative analysis of the German, French and English texts of 
the directive, and having regard to the statements made at the end of recital 33 of 
the directive (‘Such cooperation might cover all types of activities related to the 
performance of services [...].’), the present Chamber proposes an answer to the 
question referred that differs from the aforementioned view. The present Chamber 
believes that it would be preferable if the subject matter of the cooperation did not 
directly have to be the actual services to be provided, being the fire and rescue 
services in this case, but rather the subject matter of the cooperation could also be 
activities that serve those services and are merely ancillary or preparatory in 
nature, such as, for example, the provision and further development of the public 
safety answering point software IGNIS Plus in this case. According to this, the 
provision of the public services would not have to be carried out jointly, but rather 
it would be sufficient if the cooperation related to a public service to be provided 
by the contracting authorities in the same way or was in some way connected with 
it. 
37 Question 3 to be referred concerns the so-called prohibition on placing a party in a 
position of advantage, which was developed in the case-law of the Court of Justice 
prior to the entry into force of Directive 2014/24/EU and which the applicant 
invokes against the applicability — as asserted by the defendant — of the 
exclusion under Paragraph 108(6) of the GWB. If it must be taken into account in 
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the context of Article 12(4) of Directive 2014/24/EU, this would also have 
repercussions on the understanding of Paragraph 108(6) of the GWB. According 
to the prohibition on placing a party in a position of advantage developed by the 
Court of Justice, a requirement of horizontal cooperation that is exempt from 
public procurement law is that no private third party is placed in a position of 
advantage vis-à-vis competitors by the agreement (cf. Court of Justice, judgment 
of 13 June 2013 — C-386/11 [Piepenbrock], EU:C:2013:385, paragraph 37). 
There is no reference to the prohibition on placing a party in a position of 
advantage [Or. 12] in the text of Article 12(4) of Directive 2014/24/EU, which, in 
the view taken by the present Chamber, does not simply codify the previous case-
law of the Court of Justice in relation to horizontal cooperation. It is mentioned in 
recital 33 of the directive, however. It is therefore not clear to the present 
Chamber whether the prohibition on placing a party in a position of advantage 
must be taken into account in the context of Article 12(4) of the directive and, if 
so, with which content that should take place. 
3. 
38 The present Chamber takes the view that the questions to be referred for a 
preliminary ruling are material to the decision. It does not believe that, without the 
questions being answered, it would be possible to give a ruling on the dispute in 
the light of other legal considerations. 
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