Judgment — ECLI:EU:C:2009:540
Date: 2009-09-10
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Scope;Concessions;Exclusive nature of the role of the national court in making the reference;Jurisdiction of the Court of Justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court – Establishing and assessing the facts of the dispute – Need to make an order for reference and relevance of the questions referred – Assessment by the national court (Art. 234 EC) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – Questions not related to the purpose of the main proceedings (Art. 234 EC) 3. Approximation of laws – Procurement procedures in the water, energy, transport and postal services sectors – Directive 2004/17 – Scope – Public service concession (European Parliament and Council Directive 2004/17, Art. 1(3)(b)) 1. In the context of the cooperation established by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling. (see para. 33) 2. In exceptional circumstances, the Court can examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see para. 34) 3. In relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for the contract in question to be categorised as a ‘service concession’ within the meaning of Article 1(3)(b) of Directive 2004/17 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service. The fact that the service provider is remunerated by payments from third parties is one means of exercising the right, granted to the provider, to exploit the service. It is irrelevant, in that regard, whether the remuneration is governed by private or public law. When the agreed method of remuneration consists in the right for the provider to exploit the service it is providing, that method of remuneration means that the provider takes the risk of operating the services in question, as that risk is thus inherent in the economic operation of the service. If the contracting authority continues to bear all of the risk by not exposing the supplier to the vagaries of the market, the awarding of the right to operate the service requires that the formalities provided for in Directive 2004/17 be applied, with a view to safeguarding transparency and competition. In the complete absence of a transfer to the service provider of the risk connected with operating the service, the transaction concerned is a service contract. In the case of a service contract, the consideration does not consist in the right to exploit the service. In any event, even if the risk run by the contracting authority is very limited on account of the application of the rules governing the sector of authority concerned, it is necessary that the contracting authority transfer to the concession holder all, or at least a significant share, of the operating risk which it faces, in order for a service concession to be found to exist. It is for the national court to assess whether there has been a transfer of all, or a significant share, of the risk faced by the contracting authority. To that end, the general risks resulting from amendments to the rules, made in the course of performance of the contract, cannot be taken into account. (see paras 53, 55, 57, 59, 67-69, 77-80, operative part)