Judgment — ECLI:EU:C:2005:389
Date: 2005-06-16
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Scope
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Approximation of laws – Procurement procedures in the water, energy, transport and telecommunications sectors – Directive 93/38 – Scope – Contracting entities exercising one of the activities mentioned in the directive and awarding a contract or organising a design contest for the purposes of the pursuit of that activity (Council Directive 93/38, Arts 2(2), 4(1) and 6(1)) The applicability of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors depends on the activity exercised by the contracting entity concerned and on the links between that activity and the contract planned by that entity. If the latter carries on one of the activities listed in Article 2(2) of that directive, and in so doing contemplates, which it is a matter for the national court to verify, the award of a supply, works or service contract or the organisation of a design contest, the provisions of this directive will apply to that contract or contest. If the contracting entity does not carry on one of those activities, the contract or contest will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts as the case may be. In accordance with Article 6(1) of Directive 93/38, the directive is not to apply, in particular, to contracts or design contests which the contracting entities award or organise for purposes other than the pursuit of their activities as described in Article 2(2) of that directive. In addition, the latter is not to extend to activities of those entities which either fall outside the water, energy, transport or telecommunications sectors or which fall within those sectors but are nevertheless directly exposed to competitive forces on markets to which entry is unrestricted. (see paras 37-39, operative part)