Opinion of the Advocate General — ECLI:EU:C:2006:24
Date: 2006-01-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Scope (Council Directive 93/36) 2. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Scope (Council Directives 93/36 and 93/38, Art. 13) 3. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Scope (Council Directive 93/36) 1. Directive 93/36 coordinating procedures for the award of public supply contracts precludes the direct award of a public supply and service contract, the main value of which lies in supply, to a joint stock company whose Board of Directors has ample managerial powers which it may exercise independently and whose share capital is, at present, held entirely by another joint stock company whose majority shareholder is, in turn, the contracting authority. In such circumstances, the condition relating to the inapplicability of Directive 93/36, namely that the contracting authority exercises over the successful tenderer for the public procurement contract at issue a control similar to that which it exercises over its own departments, is not fulfilled. In order to determine whether that condition is fulfilled, it is necessary to take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the successful tenderer is subject to a control enabling the contracting authority to influence that company’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions. That is not the case where the control exercised by the contracting authority can be described as consisting essentially of the latitude conferred by company law on the majority of the shareholders, which places considerable limits on its power to influence the decisions of those companies. Moreover, where any influence which the contracting authority might have is through a holding company, the intervention of such an intermediary may weaken any control possibly exercised by the contracting authority over a joint stock company merely because it holds shares in that company. (see paras 36, 38-40, 47, operative part 1) 2. Article 13 of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must not be applied in the assessment of the requirement relating to the inapplicability of Directive 93/36 coordinating procedures for the award of public supply contracts, according to which the undertaking to which a supply contract was awarded directly must carry out the essential part of its activities with the controlling authority; that provision states that that directive is not to apply to service contracts which are awarded by a joint venture where at least 80% of the average turnover of that undertaking with respect to services arising within the Community for the preceding three years derives from the provision of such services to undertakings with which it is affiliated. That condition is fulfilled only if that undertaking’s activities are devoted principally to the controlling authority or authorities and any other activities are only of marginal significance. (see paras 57, 63, 70, operative part 2) 3. In order to determine whether an undertaking carries out the essential part of its activities with the controlling authority, for the purpose of deciding on the applicability of Directive 93/36 coordinating procedures for the award of public supply contracts, account must be taken of all the activities which that undertaking carries out on the basis of an award made by the contracting authority, regardless of who pays for those activities, whether it be the contracting authority itself or the user of the services provided; the territory where the activities are carried out is irrelevant. (see para. 72, operative part 3)