Opinion of the Advocate General — ECLI:EU:C:2007:706
Date: 2007-11-22
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, I consider that, in any event, a ‘body governed by public law’ falls under Directive 2004/18, regardless of the nature of the contracts it concludes, unless those contracts are expressly excluded by the Directive (Articles 12 to 18). VII – Conclusion 67. In the light of the foregoing considerations, I propose that the Court should: (1) Declare that it lacks jurisdiction to answer the questions referred for a preliminary ruling by the Vergabekontrollsenat des Landes Wien, because that body is not a court or tribunal within the meaning of Article 234 EC. (2) In the alternative, if it were to hold the reference admissible, declare that: ‘(a) A “contracting entity”, within the meaning of Article 2(2) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, is not subject to the provisions of that directive when it carries out activities other than those referred to in Articles 3 to 7 thereof. (b) The market which must be analysed for the purpose of determining its level of competition and ascertaining whether the undertaking Fenwärme Wien GmbH is a “body governed by public law”, for the purposes 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, is the market for the supply of district heating in the City of Vienna. (c) Where tenders are invited by a “body governed by public law” for the contracts referred to in Directive 2004/18, those contracts are always governed by the provisions of that directive, even when they are performed in competitive conditions.’ 1 – Original language: Spanish. 2 – OJ 2004 L 134, pp. 114 and 1 respectively. 3 – Case C‑44/96 [1998] ECR I‑73. 4 – Case C‑174/03, not published in the European Court Reports (paragraph 68). 5 – Case C‑17/00 [2001] ECR I‑9445. 6 – LGBl., No 25/2003. 7 – In the field of public procurement, the approximation of laws began with Council Directive 71/305/ EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ English Special Edition: Series I Chapter 1971(II), p. 682), which, after a number of amendments, was consolidated under the same title in Directive 93/37/EEC of 14 June 1993 (OJ 1993 L 199, p. 54). The coordination of procedures for the award of public supply contracts was initially governed by Council Directive 77/62/EEC of 21 December 1976 (OJ 1977 L 13, p. 1) and subsequently by Council Directive 93/36/EEC of 14 June 1993 (OJ 1993 L 199, p. 1). Public service contracts were subject to Council Directive 92/50/EEC of 18 June 1992 (OJ 1992 L 209, p. 1). Prior to their inclusion in Directive 2004/18, the foregoing provisions were updated in European Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1). 8 – The directive succeeds Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84). 9 – A 99.999% stake is held by Wien Energie GMBH and a 0.001% stake by Wiener Stadwerke Holding AG. The former is owned by the latter, whose sole shareholder is the City of Vienna. 10 – Case C‑92/00 [2002] ECR I‑5553. 11 – Barav, A., ‘Tâtonnement préjudiciel. La notion de juridiction en droit communautaire’, Liber amicorum Bo Vesterdorf, Emile Bruylant, Brussels, 2007 (printing underway), draws attention to the ambiguous inconsistency of the case‑law which persists in focusing on characteristics which, for the most part, are neither specific nor exclusive to the concept of a court or tribunal, thereby making it more difficult to define the term correctly. 12 – Moitinho de Almeida, J.C., ‘La notion de juridiction d´un Etat membre (article 177 du traité CE)’, Mélanges F. Schockweiler, Baden-Baden, Nomos Verlagsgesellschaft, pp. 463, 464 and 478, observes that the development of Community case-law has given rise to a number of uncertainties which the Court must resolve. 13 – That fact is not mentioned in the judgment in HI. 14 – [2007] ECR I‑00000. 15 – By way of example, in addition to HI, attention should also be drawn to Case C‑470/99 Universale-Bau [2002] ECR I‑11617. 16 – In the Opinion in Case C‑54/96 Dorsch Consult [1997] ECR I‑4961, Advocate General Tesauro observed that, if a body is not a judicial body, ‘it does not become one simply because there is no better solution’ (paragraph 40). 17 – As I pointed out in the Opinion in Case C‑259/04 Emanuel [2006] ECR I‑3089, paragraph 26. 18 – Sarmiento, D., Poder Judicial e integración europea. La construcción de un modelo jurisdiccional para la Unión, Thomson-Civitas, Madrid, 2004, pp. 201 to 203, analyses the influence of the De Coster Opinion on subsequent case-law. 19 – Case C‑516/99 [2002] ECR I‑4573. 20 – Case C‑53/03 [2005] ECR I‑4609. 21 – In connection with that administrative body, Lenaers, K., Arts, D., and Maselis, I., ‘Procedural Law of the European Union’, Robert Bray editor, London, Sweet & Maxwell, 2006, pp. 40 and 41, describe the transition of the Court of Justice towards a more restrictive construction of the concept of court or tribunal. 22 – Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577. 23 – Case C‑67/91 Asociación Española de Banca Privada and Others [1992] ECR I‑4785. 24 – Sarmiento, D., op. cit., p. 200, asserts that the De Coster opinion ‘amounted to the strongest attack on the case-law of the Court of Justice in that area’ and that it provides ‘some order in the chaos of the case-law’. 25 – Cienfuegos, M., ‘La noción comunitaria de órgano jurisdiccional de un Estado miembro ex artículo 234 del Tratado CE y su necesaria revisión’, Gaceta Jurídica de la Unión Europea y de la Competencia, July/August 2005, No 238, p. 26, warns of the insufficiency of interim solutions, such as making stricter the traditional criterion of the independence of the referring court, by tailoring its application to each individual case, and proposes, in line with the De Coster Opinion, a general alteration of the definition of court or tribunal. 26 – Inter alia, the judgments in Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 18 in fine; Case C‑360/96 BFI Holding [1998] ECR I‑6821, paragraph 41; Case C‑380/98 University of Cambridge [2000] ECR I‑8035, paragraph 16; and Case C‑237/99 Commission v France [2001] ECR I‑939, paragraph 41. 27 – Judgments in Mannesmann Anlagenbau and Others, paragraph 33; BFI Holding, paragraph 42; University of Cambridge, paragraph 17; and Commission v France, paragraph 42. 28 – Articles 3(4) and (5) of Directive 71/305 and 2(2) of Directive 77/62. 29 – Fourth to sixth recitals in the preamble to Directive 71/305 and sixth to eighth recitals in the preamble to Directive 77/62. That view is confirmed in the recital 8 in the preamble to Directive 93/38. 30 – That recital excludes from the scope of Directive 93/38 ‘… activities of those entities which either fall outside the sectors of water, energy and transport services or outside the telecommunications sector, or which fall within those sectors but are nevertheless directly exposed to competitive forces in markets to which entry is unrestricted’. 31 – Joined Cases C‑462/03 and C‑463/03 [2005] ECR I‑5397, which, by decision of the Court, was decided without an advocate general’s opinion. 32 – The Court has taken a generous approach to the definition of ‘needs in the general interest’. The Court has not restricted the definition to the institutional operation of the State or to the concept of public order (judgments in Mannesmann Anlagenbau Austria and Others paragraph 24, and Case C‑283/00 Commission v Spain [2003] ECR I‑11697, paragraph 85), and has extended it to the organisation of fairs, exhibitions and other similar initiatives (judgment in Joined Cases C‑223/99 and C‑260/99 Agorà and Excelsior [2001] ECR I‑3605, paragraphs 33 and 34); to the buying, selling and leasing of properties and the supply of property management services for a local authority (judgment in Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraphs 41 and 45); and to the construction of housing intended for selling or leasing to families of low means (judgment in Commission v France, paragraph 47). 33 – Judgments in Case C‑373/00 Adolf Truley [2003] ECR I‑1931, paragraph 66, and Korhonen and Others, paragraphs 48 and 59. 34 – Judgment in Korhonen and Others, paragraph 59. 35 – Judgment in BFI Holding, paragraph 40. 36 – Judgments in BFI Holding, paragraph 49; Agorà and Excelsior, paragraph 38 in fine; and Adolf Truley, paragraph 60. 37 – Judgments in BFI Holding, paragraph 43, and Adolf Truley, paragraph 61. According to paragraph 44 of the judgment in BFI Holding, it is hard to imagine any activities that could not be carried on by private undertakings, and therefore the absence of competition would render meaningless the term ‘body governed by public law’ used in the directives. 38 – Judgment in BFI Holding, paragraph 47 in fine. 39– In BFI Holding, the Court noted that the absence of an industrial or commercial character is a criterion intended to clarify the meaning of the term ‘needs in the general interest’ (paragraph 32). 40 – Judgments in Case C‑353/96 Commission v Ireland [1998] ECR I‑8565, paragraph 36; BFI Holding, paragraph 62; Commission v France, paragraph 43; Case C‑214/00 Commission v Spain [2003] ECR I‑4667, paragraph 53; and Commission v Spain (C‑283/00), paragraph 73. 41 – In that case the Court held that the activities pursued by a body should be taken into account to establish whether the body was established to meet needs in the general interest, not having an industrial or commercial character (paragraph 56). 42 – For similar reasoning see the judgments in BFI Holding (paragraphs 55 and 56), Adolf Truley (paragraph 56) and Korhonen and Others (paragraph 58). 43 – In fact, Advocate General Jacobs seeks to transfer to the field of public procurement concepts from the field of State aid which is incompatible with the common market, which is the subject-matter of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), and of its identically titled predecessor Commission Directive 80/723/EEC of 25 June 1980 (OJ 1980 L 195, p. 35). 44 – In the Opinion cited (paragraph 60), Advocate General Jacobs draws attention to that complexity, which is also pointed out by the Commission in its Communication – Public procurement in the European Union, COM(98) 143 final, of 11 March 1998, p. 3, and in the Green Paper – Public procurement in the European Union: exploring the way forward, COM(96) 583 final, of 27 November 1996, p. 5, point 2.10, and p. 8, point 3.6.