Opinion of the Advocate General — ECLI:EU:C:2017:319
Date: 2017-04-27
Language of the case: Lithuanian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary — Judgment of the Court (Fourth Chamber), 5 October 2017 1. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the area of public contracts (Arts 49 TFEU, 56 TFEU and 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Contracting authorities — Body governed by public law — Definition — Functional interpretation (European Parliament and Council Directive 2004/18, as amended by Regulation No 1251/2011, Art. 1(9), second para.) 3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Contracting authorities — Body governed by public law — Definition — Undertaking owned by an awarding authority carrying out both internal transactions for that authority and transactions on the competitive market — Included — Conditions (European Parliament and Council Directive 2004/18, as amended by Regulation No 1251/2011, Art. 1(9), second para.) 1. See the text of the decision. (see paras 25, 26) 2. See the text of the decision. (see paras 30, 31) 3. The second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011, must be interpreted as meaning that a company which, on the one hand, is wholly owned by a contracting authority whose activity consists of meeting needs in the general interest and which, on the other, carries out both transactions for that contracting authority and transactions on the competitive market must be classified as a ‘body governed by public law’ within the meaning of that provision, provided that the activities of that company are necessary for the contracting authority to exercise its own activity and, in order to meet needs in the general interest, that company is able to be guided by non-economic considerations, which it is for the referring court to ascertain. The fact that the value of the internal transactions may in future represent less than 90% or an insignificant part of the overall turnover of the company is irrelevant in that regard. (see para. 48, operative part)