Opinion of the Advocate General — ECLI:EU:C:2000:99
Date: 2000-02-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgment 
1. Approximation of laius — Public procurement procedures in the water, energy, 
transport and telecommunications sectors — Directive 93/38 — Work — Defini­
tion — Criterion — Economic and technical function of the result of the works — 
Artificial splitting of a single work — Electrification and street lighting works — 
Assessment 
(Council Directive 93/38, Art. 14(10), subpara. 1, second sentence, and (13)) 
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SUMMARY — CASE C-16/98 
2. Approximation of laws — Public procurement procedures in the water, energy, 
transport and telecommunications sectors — Directive 93/38 — Work — Defini­
tion — Existence of a single contracting entity and possibility of a single undertaking's 
carrying out the whole of the uorks — Not decisive criteria 
(Council Directive 93/38, Art. 14(10), subpara. 1, second sentence) 
3. Approximation of laws — Public procurement procedures in the water, energy, 
transport and telecommunications sectors — Directive 93/38 — Principle of non­
discrimination betiveen tenderers — Scope 
(Council Directive 93/38, Art. 4(2)) 
1. In order to determine whether several 
lots of a single work have been artifi­
cially split within the meaning of 
Article 14(3) of Directive 93/38 coor­
dinating the procurement procedures 
of entities operating in the water, 
energy, transport and telecommunica­
tions sectors, that provision must be 
taken into account in conjunction with 
Article 14(10), first subparagraph, of 
that directive. In that connection, it is 
clear from the definition of work in 
Article 14(10), first subparagraph, sec­
ond sentence, of Directive 93/38 that 
the existence of a work must be 
assessed in the light of the economic 
and technical function of the result of 
the works concerned. 
It follows that, in the case of a series of 
specific maintenance and extension 
works on the existing electricity supply 
and street lighting networks, the result 
of which, once completed, will be 
subsumed within the function fulfilled 
by the networks concerned, the ques­
tion whether there is a work must be 
assessed in the light of the economic 
and technical function fulfilled by the 
electricity supply and street lighting 
networks in question. An electricity 
supply network is intended, from a 
technical point of view, to transport the 
electricity produced by a supplier to 
individual end consumers; in terms of 
economics, they must pay the supplier 
for what they consume. 
A street lighting network, on the other 
hand, is intended, from a technical 
point of view, to light public places 
using the electricity provided by the 
electricity supply network. The author­
ity providing the street lighting assumes 
the cost itself, but subsequently 
recovers the amounts spent from the 
population served, without adjusting 
the sums demanded according to the 
benefit derived by the individuals con­
cerned. It follows that an electricity 
supply network and a street lighting 
network have a different economic and 
technical function and that works on 
the electricity supply and street lighting 
networks cannot be considered to con-
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COMMISSION V FRANCE 
stitute lots of a single work artificially 
split contrary to Article 14(10), first 
subparagraph, and (13) of the Direc­
tive. 
(see paras 31, 36-38, 52-56) 
2. While the existence of a single con­
tracting entity and the possibility of a 
Community undertaking's carrying out 
the whole of the works described in the 
contracts concerned may, according to 
circumstances, constitute corroborative 
evidence of the existence of a work 
within the meaning of Directive 93/38 
coordinating the procurement proce­
dures of entities operating in the water, 
energy, transport and telecommunica­
tions sectors, they cannot constitute 
decisive criteria on that point. Thus, if 
there is a number of contracting enti­
ties and the whole of the works con­
cerned cannot be carried out by a single 
undertaking, this will not call into 
question the existence of a single work 
where that conclusion results from the 
application of the criteria concerning 
function set out in Article 14(10), first 
subparagraph, second sentence, of the 
Directive. The definition of the term 
'work' in that subparagraph does not 
make the existence of a work depen­
dent on matters such as the number of 
contracting entities or whether the 
whole of the works can be carried out 
by a single undertaking. 
(see paras 42-43) 
3. The principle of non-discrimination 
between tenderers laid down by Arti­
cle 4(2) of Directive 93/38 coordinat­
ing the procurement procedures of 
entities operating in the water, energy, 
transport and telecommunications sec­
tors, applies to all the stages of the 
tendering procedure and not only from 
the time when a contractor submits a 
tender. That interpretation is consistent 
with the purpose of the Directive which 
is to open up the contracts to which it 
applies to Community competition. 
That purpose would be undermined if 
a contracting entity could organise a 
tendering procedure in such a way that 
contractors from Member States other 
than that in which the contracts are 
awarded were discouraged from ten­
dering. It follows that Article 4(2) of 
the Directive, in prohibiting any dis­
crimination between tenderers, also 
protects those who are discouraged 
from tendering because they have been 
placed at a disadvantage by the proce­
dure followed by a contracting entity. 
(see paras 107-109) 
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