Opinion of the Advocate General — ECLI:EU:C:2000:270
Date: 2000-05-18
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: Austria

summary, therefore, a case-by-case approach should be adopted to the question of whether a contract amounts to a concession or a service contract which takes account of all indicative factors, the most important of which is whether the supposed concession amounts to a conferral of a right to exploit a particular service as well as the simultaneous transfer of a significant proportion of the risk associated with that transfer to the concessionaire. 38. In their observations the applicants have advanced various arguments which seek to demonstrate that, in reality, the PTA is providing consideration to HBD. In the context of a preliminary reference, it is not for this Court to make any findings in this respect which remain exclusively a matter for the court or tribunal which has referred the case. However, as it emerges clearly particularly from theBVA's fifth question that it entertains doubts as to the degree of economic risk that must be borne by a concessionaire, it may be of assistance to it to consider briefly some of the allegations made by the applicants. They assert that the grant to HBD of the right to use the PTA logo is of considerable economic value. This coupled with the facts that all of the cost factors involved for HBD are relatively easy to determine in advance and that the possibility of selling advertising space in the directories amounts, as was asserted at the hearing, to 'a real gold-mine gives the lie, in the applicants' view, to the claim that HBD undertook any real economic risk. 39. Naturally, this assessment is hotly contested by the PTA. It points out that paragraph 16 of the contract expressly confers the responsibility of producing the directory on HBD. It submits that it has licensed HBD, in return for payment, to use its data for the purpose of producing that directory. However, this licence is not different from that which it would be willing to grant to any other economic operator who wished to exploit that information. As regards the logo, it has not authorised HBD to use its trade mark but has in fact obliged it to do so. This is an arrangement which is for its benefit because it profits from certain free and advantageously placed advertising in the directory. Moreover, the fact that the PTA has paid for the acquisition of a shareholding in HBD, which transaction is wholly independent of the concession, cannot be regarded as consideration paid to the latter in respect of that concession. 40. In my view, the mere fact that there is a likelihood that the concessionaire will be able beneficially to exploit the concession would not suffice to permit a national court or tribunal to conclude that there is no economic risk. To my mind, a national court or tribunal would need to be satisfied to a high degree of probability that the possibility of loss was minimal or even non-existent. Although it is for the BVA in the present case to make that determination, I am unconvinced that assertions such as those made by the applicants satisfy the test of no real or effective risk. HBD has to pay for the use of the data, which data could be obtained on the same terms by other economic operators. The requirement imposed on HBD to use the PTA's logo is clearly of economic benefit to the PTA. The mere fact that it might also benefit HBD does not render the concession into a contract since the extent of that benefit is not quantifiable in advance. D - General Treaty requirements 41. It is common case in the observations submitted to the Court that, even if the grant of 'public service concessions falls outside the scope of Directives 92/50/EEC and 93/38/EEC, the awarding authorities are, none the less, bound to respect the Treaty. It is also accepted that Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) would, in particular, preclude all direct and indirect discrimination based on nationality. In other words, awardingauthorities must respect the principle of equal treatment between tenderers. They must also ensure that no conditions are imposed on the tenderer that would, in themselves, amount to an infringement of, for example, Article 30 of the EC Treaty (now, after amendment, Article 28 EC). It is not submitted in this case that any of those Treaty provisions have, at least directly, been infringed. 42. The Commission, however, asserts that entities awarding 'public service concessions are also under a more general obligation, which it appears to derive from the objectives underlying Articles 30, 52 and 59 of the EC Treaty, to ensure the transparency of the award procedures. At the hearing the Commission referred to Unitrans Scandinavia and Others v Ministeriet for Fødevarer, Landbrug og Fiskeri in support of this view. (41) That case concerned the obligations affecting a body other than a contracting authority, but upon which special or exclusive rights to engage in a public service activity have been granted by such an authority, when that body awards public supply contracts to third parties. The Court held that 'the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively [and that] it implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with. (42) In answer to questions at the hearing regarding the scope of this obligation, the Commission was unwilling to suggest that it would extend to requiring publication of proposed 'public service concessions. 43. I consider that substantive compliance with the principle of non-discrimination on grounds of nationality requires that the award of concessions respect a minimum degree of publicity and transparency. I agree with the Commission that what must at all costs be avoided is that their grant be shrouded in secrecy or opacity. I also accept the point made by the agent for Austria that publicity should not necessarily be equated with publication. Thus, if the awarding entity addresses itself directly to a number of potential tenderers, and assuming the latter are not all or nearly all undertakings having the same nationality as that entity, the requirement of transparency would, in my view, be respected. Transparency, in this context, is therefore concerned with ensuring the fundamental fairness and openness of the award procedures, particularly as regards potential tenderers who are not established in the Member State of the awarding authority. It does not, however, in my opinion require the awarding entity to apply by analogy the provisions of the most relevant of the Community procurement directives. 44. In any event, in the present case, there can be little doubt that a sufficient degree of transparency was respected. The offer was published in the Austrian Official Journal, in some of the Austrian newspapers and in certain leading international newspapers. Moreover, it is not suggested that the information published in the latter differed from that published in the former. I wouldconclude that this degree of publicity prima facie satisfied the requirement of transparency. The applicants, however, submit that, in the absence of publication of the results of the pilot programme run under the earlier contract with HBD's predecessor between 1992 and 1997, it was impossible for any tenderer other than HBD effectively to tender for the proposed concession. The accuracy of this assertion cannot be verified by this Court. In my opinion, unless the BVA is satisfied that such publication, or the making available of the information concerned to serious potential interested tenderers, was crucial for ensuring the effectiveness of their tenders, it must conclude that the procedure adopted and followed by the PTA was not incompatible with Community law. E - Severance of the contract 45. The question of the distinction between service and supply contracts, which is raised by the BVA's fourth, sixth and seventh questions, would arise only in the event that the Court were to find that, notwithstanding the concession aspects of a contract such as that at issue in the main proceedings, Directive 93/38/EEC was in principle applicable. Since I take the view that a concession like that at issue in the main proceedings should be considered to fall outside the scope of that Directive, provided the substantive burden of the economic risk involved in the exploitation of the service in question is transferred to the concessionaire, I address this issue very much in the alternative. 46. In reality, the BVA wishes to know whether a contract which could be classified as containing a supply element, to wit the production of telephone directories for or on behalf of the PTA, would fall to be considered within the scope of the temporally material supplies directive, namely Directive 93/36/EEC. (43) It seems to me that the answer to this question is provided clearly by Article 1(4) of Directive 93/38/EEC (quoted in paragraph 3 above). Thus, contracts which include both 'the provision of services and supplies shall be regarded as supply contracts if the total value of supplies is greater than the value of the services covered by the contract. The Court too has recognised, especially in Gestión Hotelera Internacional, the importance of determining the predominant element of a contract where its component elements may fall within the scope of two discrete Community procurement directives. (44) However, '[i]t is for the national court to determine whether the works are incidental to the main object of the award. (45) It is therefore for the national court, in applying Article 1(4) of Directive 93/38/EEC, to determine whether, in fact, the value of what may be regarded as supplies exceeds that which may only be classified as services. If this were the case,and assuming the contract at issue is not found to constitute a 'public service concession, the procurement rules of Directive 93/36/EEC would alone be applicable to it. IV - Conclusion 47. In the light of the foregoing, I propose that the questions referred by the Bundesvergabeamt be answered as follows: (1) The provision or operation of public telecommunications networks or the provision of one or more public telecommunications services for the purposes of Article 2(2)(d) of Council Directive 93/38/EEC includes contracts concerned with the production of telephone directories; (2) 'Public service concessions do not fall within the scope of Directive 93/38/EEC; (3) In the absence of a definition adopted by the Community legislature of the notion of 'public service concessions, it is necessary in each case for the national court or tribunal to look at all the factors which are capable of indicating whether, in reality, the arrangement between the parties amounts to a written contract for a pecuniary interest in respect of the provision of services. The predominant and characteristic feature of such a concession is the grant of a right to exploit a particular service together with the associated economic risk; (4) Substantive compliance with the Treaty-based principle of non-discrimination on grounds of nationality requires that the award of 'public service concessions respect a minimum degree of publicity and transparency, the purpose of which should be to ensure fundamental fairness in the awarding procedures and a reasonable opportunity for tenderers who are not established in the Member State of the awarding entity to submit tenders; (5) Contracts falling within the scope of Directive 93/38/EEC which include components concerned with the provision of services and supplies shall by virtue of Article 1(4) of that Directive be regarded as supply contracts, for the purpose of the Community-procurement rules, if the total value of supplies is greater than the value of the services covered by the contract. 1: Original language: English. 2: - OJ 1992 L 209, p. 1. Directive 92/50/EEC has since been amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively, OJ 1997 L 328, p. 1. 3: - OJ 1993 L 199, p. 84. Directive 93/38/EEC has since been amended by Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, OJ 1998 L 101, p. 1. 4: - Article 31 of the former Fernmeldegesetz (Telecommunications Law). 5: - HBD is jointly owned by an undertaking GTE (74%) and by the PTA (26%). 6: - BGBl I No 100/1997. 7: - Up until 31 July 1997, the legal obligation to publish telephone directories was placed on the PTA pursuant to Article 2 of the Poststrukturgesetz, BGBl I No 201/1996. 8: - BGBl I No 56/1997 . 9: - The 'CPC is the United Nations Central Product Classification. As for the relevance of the 'CPC, see, in particular, paragraphs 10 and 32 et seq. of my Opinion and paragraphs 38 and 39 of the judgment in Case C-76/97 Tögel v Niederösterreichische Gebietskrankenkasse [1998] ECR I-5357. 10: - See Commission v Italy [1989] ECR 4035 (hereinafter 'Data-processing). 11: - See Commission v Italy [1994] ECR I-1409 (hereinafter 'Lottomatica). 12: - OJ 1993 L 199, p. 1. 13: - See Article 2(2)(d), quoted fully in paragraph 3 above. 14: - Proposal for a Council Directive relating to the coordination of procedures on the award of public service contracts, COM(90) 372 final, OJ 1991 C 23, p. 1. Special rules dealing with the situation where a concessionaire is a contracting authority were set out in Article 3 of the proposal. 15: - Amended proposal for a Council Directive relating to the coordination of procedures on the award of public service contracts, COM(91) 322 final, OJ 1991 C 250, p. 4. 16: - Document No 4444-92-ADD-1 of 25 February 1992. Essentially, the Council felt that the differences between the various national laws on such concessions were too great so that the impact of adopting the proposal would not be the same in all Member States. In its written observations, Austria points out that that opposition was motivated by the fact that in some Member States concessions were only granted by public (administrative) acts which would therefore have fallen outside the Commission's proposed definition which was based on concessions being granted pursuant to consensual contracts governed by private law. This was recognised, if regretted, by the Commission itself in its communication to the European Parliament concerning the common position; see SEC(2) 406 final of 5 March 1992. 17: - Proposal for a Council Directive amending Directive 90/531/EEC on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, COM(91) 347 final, OJ 1991 C 337, p. 1. 18: - OJ 1990 L 297, p. 1. 19: - Amended proposal for a Council Directive on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors; see COM(89) 380 final, OJ 1989 C 264, p. 22. 20: - See point 10 of Council Document No 5250/90 of 22 March 1990, MAP 7, PRO-COOP 28, a copy of which was annexed by the Commission to its written observations. 21: - OJ, English Special Edition, First Series 1971 (II), p. 682. 22: - OJ 1989 L 210, p. 1. 23: - OJ 1993 L 199, p. 54. Council Directive 89/440/EEC and Council Directive 93/37/EEC will, for convenience, occasionally hereinafter be referred to as 'the public works directives. 24: - Case C-360/96 [1998] ECR I-6821, paragraph 26 (emphasis in original). 25: - It thus largely replicated the earlier definition of what was excluded from the notion of 'contracts for pecuniary interest concluded in writing by Article 3(1) of Directive 71/305/EEC. 26: - The advertising rules applicable to such 'contracts were prescribed by the new Article 1b inserted into the Directive 71/305/EEC by Article 1(2) of Directive 89/440/EEC. 27: - See Article 1(d) and the fifth recital in the preamble to the Directive. 28: - Paragraph 25 (emphasis added). The Court, thus, implicitly agreed with Advocate General La Pergola's view that an 'important feature of service concessions in the Community context [is] that the concessionaire automatically assumes the economic risk associated with the provision and management of the services that are the subject of the concession; paragraph 26 of his Opinion (emphasis added). 29: - At the date of the hearing (23 March 2000) a draft proposal only had been published on the Internet; see the 'Projet de communication interprétative de la Commission sur les concessions en droit communautaire des marchés publics, DG XV XV/B - 24 February 1999 (http://europa.eu.int/comm/internal_market/en/pub/publproc/general/concfr.pdf.), which was seemingly available only in French. However, it has since (29 April 2000) been published as an interpretative communication in the Official Journal; see OJ 2000 C 121, p. 2. 30: - See footnote 10, in particular, of the communication. 31: - Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts, OJ 1977 L 13, p. 1. 32: - Paragraph 24. 33: - Paragraph 25. 34: - Paragraph 26. 35: - Paragraph 26. 36: - Ibid. 37: - Loc. cit., footnote 30 above. 38: - Data-processing, paragraph 26. 39: - See OJ 1991 C 23, p. 1 and OJ 1991 C 250, p. 4., cited initially in footnotes 13 and 14 above. 40: - See, for example, the recent judgment in Case C-67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-0000, paragraphs 102 to 107. 41: - Case C-275/98 [1999] ECR I-0000. 42: - Paragraph 31. 43: - Loc. cit., footnote 11 above. 44: - Case C-331/92 [1994] ECR I-1329; see in particular paragraphs 25 to 27. 45: - Ibid., paragraph 28.