Opinion of the Advocate General — ECLI:EU:C:2004:391
Date: 2004-06-24
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
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope – Contract unrelated to the activities in the general interest of the contracting authority – Included – Contract aiming to subcontract the activities of a local or regional authority operating as a service provider – Included (Council Directive 92/50, Arts 1(a) and (b), 8 and 11) Article 8 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 1(a) and (b) and Article 11(1) of the directive, provides that, where contracts for pecuniary interest concluded in writing between a service provider and a regional or local authority have as their object the services listed in Annex I A to the directive, they must be the subject of an open, restricted or negotiated procedure within the meaning of that directive. In that regard, the fact that the contract does not fall within the scope of activities in the general interest of that local or regional authority, but comprises an independent economic activity, which is clearly distinct and subject to competition, does not show that that contract is not a public contract for the purposes of Articles 8 and 11 of Directive 92/50. Article 1(a) of that directive makes no distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task. It is likewise irrelevant that the contracting authority intends to operate as a provider of services itself and that the contract in question aims, in that context, to subcontract a part of the activities to a third party. (see paras 13, 16, 18)