Opinion of the Advocate General — ECLI:EU:C:2004:747
Date: 2004-11-24
Language of the case: French
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. Freedom to provide services – Procedures for the award of public service contracts – Contracts excluded from the scope of Directive 92/50 – Obligation to comply with the fundamental rules of the Treaty (Art. 49 EC; Council Directive 92/50) 2. Freedom to provide services – Procedures for the award of public service contracts – Directive 92/50 – National legislation permitting the project manager to delegate certain of its responsibilities – Task of agent reserved to exhaustively listed legal persons under national law – Not permissible (Art. 49 EC; Council Directive 92/50) 1. The provisions of the EC Treaty relating to freedom of movement are intended to apply to public contracts which are outside the scope of Directive 92/50 relating to the coordination of procedures for the award of public service contracts. Although certain contracts are excluded from the scope of Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on grounds of nationality in particular. That is particularly the case in relation to public service contracts the value of which does not reach the thresholds fixed by Directive 92/50. The mere fact that the Community legislature considered that the strict special procedures laid down in the directives on public procurement are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from the scope of Community law. (see paras 32-33) 2. A Member State which reserves the task of delegated project contracting to an exhaustive list of legal persons under national law, by which the contracting authority may, by an agreement in writing and for remuneration, appoint an agent to fulfil, in its name and on its behalf, all or any of certain of its responsibilities, fails to fulfil its obligations under Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, and under Article 49 EC as regards public service contracts outside the scope of Directive 92/50. (see paras 64, 71, operative part)