Opinion of the Advocate General — ECLI:EU:C:2005:123
Date: 2005-03-01
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, therefore, it is appropriate to find that: The fact that a municipality awards the management of a public pay car park to a public limited company in which it is the sole shareholder without first carrying out an award procedure does not infringe Articles 43 EC, 49 EC and 86 EC, in so far as the municipality exercises over the public limited company a control similar to that which it exercises over its own departments and the public limited company carries out the essential part of its activities for the municipality. The exercise by a contracting authority of a control similar to that which it exercises over its own departments is not automatically precluded because the municipality has a statutory obligation to open up the capital of the public limited company to participation by third parties within a certain period in the future, or because the managerial bodies of the public limited company have extensive powers in the day-to-day running of the business. The pursuit by a contractor of the essential part of its activities for the municipality is not automatically precluded because the field of activity in which the public limited company is permitted to operate under its statutes is extensive in material and geographical terms; it is the activities which the company actually carries on which are the decisive criterion. VI – Conclusion 87. In the light of the foregoing, I propose that the Court should answer as follows the questions referred for a preliminary ruling by the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen: (1) A situation where a contracting authority assigns the management of a public car park to an undertaking which may charge a fee for the use of the car park and, in return, undertakes to pay annual compensation to the contracting authority does not constitute a public service contract within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, but a service concession not falling within the scope of that directive; (2) The fact that a municipality awards the management of a public pay car park to a public limited company in which it is the sole shareholder without first carrying out an award procedure does not infringe Articles 43 EC, 49 EC and 86 EC, in so far as the municipality exercises over the public limited company a control similar to that which it exercises over its own departments and the public limited company carries out the essential part of its activities for the municipality. The exercise by a contracting authority of a control similar to that which it exercises over its own departments is not automatically precluded because the municipality has a statutory obligation to open up the capital of the public limited company to participation by third parties within a certain period in the future, or because the managerial bodies of the public limited company have extensive powers in the day-to-day running of the business. The pursuit by a contractor of the essential part of its activities for the municipality is not automatically precluded because the field of activity in which the public limited company is permitted to operate under its statutes is extensive in material and geographical terms; it is the activities which the company actually carries on which are the decisive criterion. 1 – Original language: German. 2 – Judgment in Case C-107/98 Teckal [1999] ECR I-8121, paragraphs 49 and 50, concerning Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1, hereinafter ‘Directive 93/36’). 3 – See in this regard point 49 of the Opinion of Advocate General Stix-Hackl in Case C-26/03 Stadt Halle [2003] ECR I-0000. 4 – See, by way of first precedent, the judgment in Teckal (cited in footnote 2). The judgment in Case C-26/03 Stadt Halle and Others [2003] ECR I-0000 was delivered only recently, on 11 January 2005. Other cases, Case C-231/03 Coname, Case C-29/04 Commission v Austria and Case C-216/04 Saba Italia, for example, are currently still pending. 5 – Council Directive 92/50/EC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). That directive was repealed and replaced by 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; hereinafter ‘Directive 2004/18’). In terms of time, however, Directive 92/50 remains applicable to this case. 6 – Decree-Law. 7 – Decree-Law 267/2000 bears the title ‘Testo unico delle leggi sull’ordinamento degli enti locali’ (Single text of the laws on the organisation of local authorities) and is published in GURI No 227 of 28 September 2000, Ordentliches Beiblatt No 162. 8 – This provision comes from Article 44 of Regional Law No 1 of 4 January 1993 (Amtsblatt Autonome Region Trentino-Südtirol No 3 of 19 January 1993, Ordentliches Beiblatt No 1), amended by Article 10 of Regional Law No 10 of 23 October 1998 (Amtsblatt Autonome Region Trentino-Südtirol No 45 of 27 October 1998, Beiblatt No 2). 9 – Municipal Council Decision No 118 of 18 December 2001. 10 – Municipal Council Decision No 107 of 28 November 2002. 11 – According to the order for reference, an increase in the parking fee leads to a rise in the annual compensation equal to 80% of the percentage increase in the corresponding fee. 12 – Municipal Council Decision No 97 of 25 October 2001. 13 – The power to make such appointments, as became clear at the hearing, lies with the Municipal Council. 14 – Cited in footnote 14. 15 – See in this regard points 1 and 2 of this Opinion. 16 – Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), since repealed and replaced by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1). 17 – On Article 1(a) of the Services Directive (92/50), see the order in Case C-358/00 Buchhändler-Vereinigung [2002] ECR I-4685, paragraphs 29 and 30; on Article 1(4) of the Utilities Directive (93/38), see the judgment in Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraphs 57 and 58. 18 – Article 1(4) of Directive 2004/18. 19 – Judgment in Telaustria and Telefonadress, paragraph 58, second sentence, and the order in Buchhändler-Vereinigung, paragraph 27, both cited in footnote 17. See also to that effect the prospectively applicable legal definition of service concession in Article 1(4) of Directive 2004/18. 20 – The Commission also refers in this connection to its interpretative communication on concessions under Community law (OJ 2000 C 121, p. 2); see in particular paragraph 2.2 of that communication. 21 – See to this effect, inter alia, the judgment in Case C-235/95 Dumon and Froment [1998] ECR I‑4531, paragraph 25; similarly, the judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 63). 22 – The other parties to the proceedings have not commented in any depth on the issue discussed here. The Municipality of Brixen and Stadtwerke Brixen AG submit that there is no service concession because Stadtwerke Brixen AG is not a third party in relation to the Municipality of Brixen. 23 – On the inapplicability of Directive 92/50 in circumstances such as those of this case, see my comments on the first question (points 27 to 33 of this Opinion). 24 – In circumstances such as those of this case, the freedom to provide services (Article 49 EC) and – in so far as a foreign tenderer proposes to become established in Italy in order to manage the car parks – the freedom of establishment (Article 43 EC) may be relevant. 25 – See to this effect – in particular in the case of a service concession – the judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 60); see also the judgment in Case C‑57/01 Makedoniko Metro and Michaniki [2003] ECR I-1091, paragraph 69, and the order in Case C‑59/00 Vestergaard [2001] ECR I-9505, paragraphs 20 and 21; similarly, the judgment in Case C-92/00 HI [2002] ECR I-5553, paragraph 47. 26 – Judgments in Telaustria and Telefonadress (cited in footnote 17, paragraph 61) and HI (cited in footnote 25, paragraph 45); judgment in Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31. 27 – Judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 62). 28 – Settled case-law, see most recently the judgment in Case C-293/03 My [2004] ECR I-0000, paragraph 40. With regard specifically to the freedom of establishment and the freedom to provide services, see the judgment in Case 115/78 Knoors [1979] ECR 399, paragraph 24, first clause). 29 – See also the judgment in Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 33, according to which undertakings established in other Member States may be concerned directly or indirectly by the award of a contract. Accordingly, requirements relating to the award procedure must be observed irrespective of the nationality or place of establishment of the tenderers. This finding applies not only to the requirements laid down in the procurement directives but can also be transposed to circumstances such as those of this case which call for the application of general principles of Community law. 30 – Judgment in Stadt Halle (cited in footnote 4, paragraph 48). 31 – Judgment in Teckal (cited in footnote 2, paragraphs 46, 49 and 50). 32 – As regards the scope ratione personae of procurement law, it is necessary – and, on the other hand, sufficient – that one of the parties to the contract should be a contracting authority (judgments in Teckal, cited in footnote 2, paragraph 42, second sentence, and Stadt Halle, cited in footnote 4, paragraph 47; see also the judgment in Case C-94/99 ARGE [2000] ECR I-11037, paragraph 40.) 33 – The criteria, as originally defined, can be found in paragraph 50, second sentence, of the judgment in Teckal (cited in footnote 2) and are also referred to in the judgment in Case C-84/03 Commission v Spain [2005] ECR I-0139, paragraph 38). The same criteria, albeit defined in slightly different words, are applied in the judgment in Stadt Halle (cited in footnote 4, paragraph 49, second sentence). The comments that follow are based on the latter definition, unless otherwise indicated. 34 – In terms of terminology, the judgment in Stadt Halle uses the clumsy formulation ‘public authority which is a contracting authority’; the judgment in Teckal uses the term – based on the circumstances of that case – ‘local authority’. 35 – In terms of terminology, the contractor is referred to in the judgment in Teckal as the ‘person concerned’; in the judgment in Stadt Halle as ‘entity concerned’. 36 – The use of the word ‘with’ in the judgment in Stadt Halle and in most language versions of the judgment in Teckal is unusual from a linguistic point of view, given that such a transaction does not usually involve cooperation between two undertakings but a relationship in which a public undertaking performs certain tasks or provides certain services for the public body which controls it. 37 – Council Directive 93/37EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L199, p. 54), since repealed and replaced by Directive 2004/18. 38 – On Directive 92/50, see the judgment in Stadt Halle (cited in footnote 4, paragraphs 47 and 49); similar evidence was already to be found in the judgment in ARGE (cited in footnote 32, paragraph 40). On Directive 93/97, see the judgment in Commission v Spain (cited in footnote 33, paragraph 39). 39 – On the inapplicability of Directive 92/50 in circumstances such as those of this case, see my comments on the first question (points 27 to 33 of this Opinion). 40 – See in this regard, for example, the sixth recital in the preamble to Directive 92/50 and recital 2 in the preamble to Directive 2004/18, as well as the judgments in Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 51. See also points 35 to 37 of this Opinion. 41 – Judgment in Stadt Halle (cited in footnote 4, paragraphs 49 and 52). 42 – See for example in this connection – on the definition of control in the context of concentrations – paragraphs 13, 14 and 18 et seq. of Commission Notice on the concept of concentration under Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1998 C 66, p. 5). 43 – See also Article 2 of 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; last amended by Commission Directive 2000/52/EC of 26 July 2000, OJ 2000 L 193, p. 75). 44 – This is also referred to in the judgment in Stadt Halle (cited in footnote 4, paragraph 50). On the definition of a semi-public undertaking, see, for example, point 58 of the Opinion of Advocate General Stix-Hackl in Stadt Halle (cited in footnote 3). 45 – See Article 115 of Decree-Law 267/2000, on the one hand, and Article 88(6)(b) of the Provisions concerning local government together with Article 5(2) of the Statutes of Stadwerke Brixen AG, on the other. 46 – As became clear at the hearing before the Court, the parties to these proceedings are in disagreement as to whether Article 115 of Decree-Law 267/2000 does impose a statutory obligation on the municipality to open up the share capital of Stadtwerke Brixen AG, or whether, alternatively, the municipality may continue be the sole shareholder in the long term. The Municipality of Brixen relies in this regard on Article 2362 of the Italian Civil Code (Codice Civile, as amended by Decree-Law No 6 of the President of the Republic of 17 January 2003, Ordentliches Beiblatt No 8), under which, in Italy, public limited companies may also consist of a single shareholder. 47 – In this case, a term of nine years was agreed in relation to the car park on plot No 491/6; see point 14 of this Opinion. 48 – Judgment in Stadt Halle (cited in footnote 4, paragraph 51). 49 – Freedom of establishment (Article 43 EC) and the free movement of capital (Article 56(1) EC). 50 – See in this regard points 35 to 39 of this Opinion. 51 – As the referring court points out in its second question, the Administrative Board of Stadtwerke Brixen AG ‘enjoys all extensive powers of routine administration up to a value of EUR 5 000 000 per transaction’. 52 – See Article 9 of, and the second recital in the preamble to, First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41). 53 – See in particular Article 2 et seq. of Directive 68/151 and Articles 2 and 47 of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11). 54 – A publicly-controlled undertaking in the form of a public or private limited company would in some circumstances have to bid as one of several potential tenderers for the contract or concession in question. 55 – Evidence of which can be found in the European Charter of Local Self-Government of 15 October 1985 (ETS No 122), which was ratified by most Member States within the framework of the Council of Europe. Article 6(1) of the Charter provides that local authorities must ‘be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management’. Moreover, the importance of local self-government is emphasised by the express reference to it in Article I-5(1) of the Treaty establishing a Constitution for Europe (signed in Rome on 29 October 2004, OJ 2004 C 310, p. 1). 56 – See also in this regard point 42 of this Opinion. 57 – In this connection, regard should be had, for example, to the liberalisation of the telecommunications sector. See in particular in this respect Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21). See also the Amended Proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway (COM (2002) 107 final, OJ 2002 C 151 E, p. 146). 58 – My emphasis. Unlike the other language versions of the judgment in Teckal, the German version omits the word ‘similar’. This inconsistency was rectified in the judgment in Stadt Halle. 59 – The judgment in Teckal (cited in footnote 2, paragraph 51) refers to the concept of independence from the contracting authority in regard to decision-making (the French language version uses the adjective autonome, the Italian, the language of the case, the adjective autonomo). 60 – Judgment in Stadt Halle (cited in footnote 4, paragraph 50). 61 – The judgment in Stadt Halle (cited in footnote 4, paragraph 50) is worded as follows: ‘[t]he relationship between a public authority which is a contracting authority is governed by considerations and requirements proper to the pursuit of objectives in the public interest’. 62 – See in this regard point 19 of this Opinion. 63 – Article 9(1) and (2) of Directive 68/151. 64 – See also in this regard points 68 to 71 of this Opinion. 65 – Advocate General Stix-Hackl likewise emphasises in point 83 of her Opinion in Stadt Halle (cited in footnote 3) that it is the activities actually carried out which count, not those permitted by law or under the undertaking’s statutes. 66 – See also to this effect Advocate General Stix-Hackl in point 89 of her Opinion in Stadt Halle (cited in footnote 3). 67 – In a case such as this, consideration should also be given, for example, to the value in relation to the undertaking’s activities as a whole of the new areas of work assigned to Stadtwerke Brixen AG in its statutes in addition to those in which the former special undertaking was active (that is to say information technology and telecommunications), and who contracted the undertaking to carry out such activities.