Opinion of the Advocate General — ECLI:EU:C:2005:212
Date: 2005-04-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Grant by a public authority of a concession to operate a public service – Excluded (Art. 81 EC) 2. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct award of a concession for the management of a public gas‑distribution service – Not permissible in the absence of sufficient transparency (Arts 43 EC and 49 EC) 1. Article 81 EC, which applies, according to its wording, to agreements ‘between undertakings’, does not, in principle, apply to contracts for concessions concluded between municipalities acting in their capacity as public authorities and concessionaires entrusted with responsibility for a public service. (see para. 12) 2. Articles 43 EC and 49 EC preclude the direct award by a municipality of a concession for the management of the public gas-distribution service to a company in which there is a majority public holding and in the capital of which the municipality in question has a 0.97% holding, if that award does not comply with transparency requirements which, without necessarily implying an obligation to hold an invitation to tender, are, in particular, such as to enable an undertaking located in the territory of a Member State other than that of the municipality in question to have access to appropriate information regarding that concession, so that, if that undertaking had so wished, it would have been in a position to express its interest in obtaining that concession. (see paras 21, 28, operative part)