62000CC0373_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
These proceedings concern the interpretation of the concept of contracting authority in the form of a
"body governed by public law"
within the meaning of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts
(2) (hereinafter
"Directive 93/36"
).
Of particular concern are the definition of
"needs in the general interest, not having an industrial or commercial character"
and the question whether the activities of a funeral undertaking are covered by this concept.
II ─ Legal framework
(1)
Community legislation
2.
Article 1(b) of Directive 93/36 defines the term
"body governed by public law"
as follows:
"For the purpose of this Directive:
(a)
...
(b)
"contracting authorities "
shall be the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law;
"a body governed by public law "
means any body:
─
established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
─
having legal personality, and
─
financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law;
the lists of bodies or of categories of such bodies governed by public law which fulfil the criteria referred to in the second subparagraph are set out in Annex I to Directive 93/37/EEC.
These lists shall be as exhaustive as possible and may be reviewed in accordance with the procedure laid down in Article 35 of Directive 93/37/EEC
"
.
(2)
National legislation
3.
The following legislation would appear to be particularly important in resolving the current issue:
(a) Gewerbeordnung 1994
4.
The activity of funeral undertaker is governed by Paragraphs 130 to 134 of the Gewerbeordnung (Austrian Trade Regulations).
(3)
5.
That activity is not reserved to specific persons or, for example, to the State, the
Länder
or municipalities.
However, the issue of a trading licence pursuant to Paragraph 131 of the Gewerbeordnung depends on there being a need for the intended exercise of that business.
When this requirement is being considered, it is particularly important to establish whether the municipal authority has made adequate provision for funeral services.
6.
According to the Vergabekontrollsenat (the Public-Procurement Review Chamber), a need for the exercise of the business is relevant only as regards the acquisition of a trading licence.
An absence of subsequent need does not entitle the authorities to revoke a trading licence.
Nor does the Gewerbeordnung provide for any territorial monopoly in such a way that the business may be exercised only in a certain territory.
7.
Paragraph 132 of the Gewerbeordnung requires the Landeshauptmann (First Minister of the
Land
) to set maximum charges for funeral services.
Such charges may be set for the whole
Land
, for individual administrative districts or even for individual municipalities.
(b) Wiener Leichen- und Bestattungsgesetz
8.
At
Land
level, funeral services are governed by the Wiener Leichen- und Bestattungsgesetz (Law of the Land of Vienna on the activity of funeral undertaker) ( "the WLBG"
).
(4)
Paragraph 10(1) of that Law reads:
"Where no arrangements are made for the funeral of the deceased within five days of the death certification being issued, the Magistrat [of the City of Vienna] shall arrange the funeral (by burial or cremation) at a funeral facility of the City of Vienna.
The City of Vienna shall bear the costs of the funeral only in so far as they are not to be met by third parties or covered by the deceased's estate."
9.
Paragraph 22(1) of the WLBG requires the burial or cremation of all corpses.
According to Paragraph 22(2) in conjunction with Paragraph 23 of this Law, burial or cremation may be effected only at cemeteries, cineraria and special funeral establishments.
(c) Wiener Landesvergabegesetz
(5)
10.
Article 1(b) of Directive 93/36 has been transposed by Paragraph 12 of the Wiener Landesvergabegesetz (Law on the Award of Public Contracts of the
Land
of Vienna) ( "the WLVergG"
).
Paragraph 12 stipulates:
"(1) This
Law shall apply to the award of contracts by contracting authorities. Contracting authorities within the meaning of this
Law shall be:
1.
Vienna as a
Land
or municipality and
2.
bodies established under the law of the
Land
provided that they have been founded for the purpose of meeting needs in the general interest, not being commercial in character, if they have at least some legal capacity, and
(a)
more than half of whose managers are appointed by bodies of the City of Vienna or of another entity within the meaning of points 1 to 4 or are persons appointed by bodies of the said entities for this purpose or
(b)
whose management is subject to supervision by the City of Vienna or other entities within the meaning of points 1 to 4 or
(c)
which are financed, for the most part, by the City of Vienna or other entities within the meaning of points 1 to 4,
3.
undertakings monitored by the Austrian Court of Auditors which are not governed by Article 126b(2) of the Federal Constitutional Law in the version published in BGBl. I No 148/1999, which were established for the purpose of meeting needs in the general interest, not having a commercial character, and in which the City of Vienna as a
Land
or municipality holds at least the relative majority of the shares held by public authorities,
...
"
(d) Wiener Stadtverfassung
11.
Also of relevance is the Wiener Stadtverfassung (Vienna Municipal Constitution ─ WStV),
(6) Paragraph 73 of which governs the activities of the Kontrollamt (Monitoring Office).
In terms of organisation the Kontrollamt forms part of the Magistrat (Municipal Corporation) (Paragraph 106(1) of the WStV), which in turn is a body of the Municipality (City) of Vienna (Paragraph 8(11) of the WStV).
"(1) The Kontrollamt shall examine the overall conduct of the municipality and of the funds and foundations having legal personality and administered by municipal authorities for proper accounting, regularity, economy, efficiency and expediency (review of conduct).
The Kontrollamt shall also examine the performance required of municipal authorities of official tasks relating to public safety or health; it shall also determine whether adequate, appropriate and proper safety measures have been taken by the entities and facilities administered by municipal authorities which pose a potential threat to public safety or health (review of safety).
Decisions taken by the appropriate collective authorities concerning conduct and safety shall, however, be excluded from the review.
In the standing orders for the Municipal Corporation the Mayor shall provide for the setting up within the Kontrollamt of a group to review conduct and another to review safety, each headed by a responsible person.
(2) The Kontrollamt shall also examine the conduct of commercial undertakings in which the municipality has a majority interest.
Where such a commercial undertaking has a majority interest in another undertaking, the examination shall extend to that other undertaking.
The Kontrollamt's powers of examination shall be assured by suitable measures.
(3) The Kontrollamt may further examine the conduct of entities (commercial undertakings, associations, etc.) in which the municipality has an interest other than that referred to in paragraph 2 or on whose organs the municipality is represented, provided that the municipality has reserved the right to carry out such a review.
This shall also apply to entities which receive financial support from municipal resources or for which the municipality accepts liability.
(4) ...
(5) ...
(6) Upon decision by the Municipal Council or the Monitoring Committee or at the request of the Mayor or, in respect of the area of responsibility of his unit, of an office-holding city councillor, the Kontrollamt shall carry out special reviews of conduct and safety and shall inform the requesting authority of its findings.
(7) ...
(8) ...
"
(e) The articles of association of Bestattung Wien
12.
The Kontrollamt's power to carry out reviews pursuant to Paragraph 73 of the WStV is reflected in Paragraph 10.3 of the articles of association of Bestattung Wien.
According to this, the Kontrollamt of the City of Vienna is entitled to examine both Bestattung Wien's business management, in terms of proper accounting, regularity, economy, efficiency and expediency, and the annual accounts and situation report, including the recording of receipts and other documents, to inspect its business premises and facilities and to report the findings of such examinations to the competent authorities, the shareholders and the City of Vienna.
III ─ Facts of the case
13.
Until 1999 funeral services in Vienna were provided by Wiener Bestattung, a component undertaking of the Wiener Stadtwerke (Vienna Public Utilities).
Neither entity had legal personality of its own.
The Wiener Stadtwerke was an undertaking within the meaning of Paragraph 71 of the WStV and thus formed part of the Municipal Corporation (Paragraph 106(1) of the WStV).
At that time calls for tenders similar to the one at issue in the main procedure were published on several occasions.
14.
In 1999 the Wiener Stadtwerke was separated from the Municipal Corporation's administration and, as Wiener Stadtwerke Holding AG, was given its own legal personality.
All of its shares are held by the City of Vienna.
15.
One of the undertakings belonging to Wiener Stadtwerke Holding AG is Bestattung Wien GmbH (hereinafter
"Bestattung Wien"
), which similarly has legal personality of its own.
Wiener Stadtwerke Holding AG is its sole shareholder. Bestattung Wien has provided funeral services in Vienna since 1999.
16.
Although Bestattung Wien itself produces the coffins needed for funerals, it purchases the necessary coffin fittings and fixtures from other undertakings.
In this connection, it invited tenders by open procedure in preparation for the award of a contract to supply coffin fittings and fixtures (shrouds, upholstery, coffin frames).
The call for tenders was published throughout Austria in the official procurement gazette and also in the
Amtsblatt der Stadt Wien
(Official Journal of the City of Vienna).
Adolf Truley GesmbH (hereinafter
"Truley"
) submitted a tender in response to this invitation.
By letter of 6 June 2000 it was informed by Bestattung Wien that it would not be awarded the contract.
17.
According to Bestattung Wien, the reason for this rejection was the high price quoted by Truley in its tender.
Truley asserts, on the other hand, that it was the only bidder to have complied with the call for tenders and ought therefore to have been considered.
The part tenders submitted by the other bidders, it argues, did not comply with the call for tenders and should not therefore have been taken into consideration.
18.
In the review proceedings brought against the rejection before the Vergabekontrollsenat, Bestattung Wien expressed the view that it should not be regarded as a body governed by public law within the meaning of Directive 93/36 and the Wiener Landesvergabegesetz, the Law passed to transpose that directive.
It was, it claimed, a company with its own legal personality, which was run on purely commercial lines and was completely independent from the City of Vienna.
It has therefore applied for the appeal to be dismissed.
Truley challenges this view of the law, referring to the ownership structure of Bestattung Wien, and considers the latter to be under an obligation to observe the rules on public contracts.
The Vergabekontrollsenat has therefore to decide to what extent Bestattung Wien should be regarded as a body governed by public law within the meaning of the legislation on the award of contracts.
IV ─ Questions submitted for a preliminary ruling
19.
In this context the Vienna Vergabekontrollsenat has referred the following three questions to the Court of Justice for a preliminary ruling:
1.
Must the term
"needs in the general interest"
in Article 1(b) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts be interpreted as meaning that
(a)
the definition of needs in the general interest must be derived from the national legal system of the Member State?
(b)
the fact that a regional or local authority's obligation is subsidiary is in itself sufficient for the existence of a need in the general interest to be assumed?
2.
In interpreting the requirement
"meeting needs ... not having an industrial or commercial character"
laid down in Directive 93/36/EEC, is (a) the existence of significant competition an imperative condition or (b) are the factual or legal circumstances the determinant factors in that respect?
3.
Is the requirement laid down in Article 1(b) of Directive 93/36/EEC that the management of the body governed by public law must be subject to supervision by the State or a regional or local authority also fulfilled by a mere review as provided for through the Kontrollamt (Monitoring Office) of the City of Vienna?
V ─ Views of the parties and assessment
(1)
Admissibility of the request for a preliminary ruling
(a) Court or tribunal within the meaning of Article 234 EC
20.
The Court of Justice has not yet ruled that the Vienna Vergabekontrollsenat is a
"court or tribunal"
within the meaning of Article 234 EC.
The question also arises in Cases C-470/99 and C-92/00 pending before the Court, in which judgments have yet to be delivered.
21.
In my Opinion in Case C-470/99 delivered on 8 November 2001 I explained at some length why I believe the Vergabekontrollsenat should be regarded as a
"court or tribunal"
.
I would therefore like to refer to those comments.
22.
According to those comments, the Vergabekontrollsenat is, pursuant to Paragraph 94(2) of the WLVergG, responsible at first and last instance for reviewing decisions taken by a contracting authority in an award procedure.
Its activity thus has a legal basis and represents compulsory jurisdiction.
It is also a permanent body.
The decisions of the contracting authorities are monitored in accordance with the rules laid down in the WLVergG and, where the latter does not contain any specific provisions, pursuant to Paragraph 94(3) of the WLVergG on the basis of the Allgemeines Verwaltungsverfahrensgesetz (General Law on Administrative Procedure) and the Verwaltungsvollstreckungsgesetz (Administration Enforcement Law).
The Vergabekontrollsenat's independence vis-à-vis the administration is ensured by Paragraph 94(2) of the WLVergG, which stipulates that its decisions may not be altered or rescinded by administrative means.
In addition, Paragraph 95(4) of the WLVergG guarantees the members of the Vergabekontrollsenat the independent exercise of office free from instructions. Paragraph 95(6) sets out the rules on partiality, a criterion on which the Court of Justice placed particular emphasis in
Köllensperger and Atzwanger
.
(7)
Paragraph 95(7) requires the administrative decisions of the Vergabekontrollsenat to be issued in writing.
In view of these provisions, it must be assumed that the Vergabekontrollsenat meets the requirements of case-law to be satisfied by a court or tribunal within the meaning of Article 234 EC.
(b) Need for a preliminary ruling
23.
Bestattung Wien disputes the admissibility of the request for a preliminary ruling, arguing that its capacity as a body governed by public law within the meaning of Article 1(b) of Directive 93/36 is immaterial in the main proceedings since, pursuant to Paragraph 99 of the WLVergG, the Vergabekontrollsenat may decide only whether the contract was awarded to the lowest bidder.
Truley's bid had come second from last in terms of price both as a whole and as regards the various items, for which the tender document allowed individual bids to be submitted.
Consequently, it could never have been awarded the contract.
24.
Furthermore, petitions for declaration attacking the absence of a call for tenders at European level and the absence of a notification of the weighting of the award criteria should be rejected by the Vienna Landesvergabesenat as inadmissible, since in those circumstances it is unable to judge whether the award was unlawful.
In Bestattung Wien's view, this was an
"artificial submission"
that raised a purely hypothetical point of law.
25.
It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.
Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling.
(8)
26.
An exception to this rule is possible only if it is obvious that the interpretation of Community law sought by the national court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.
(9)
27.
If it is assumed that Truley's submission is correct, the question referred to the Court for a preliminary ruling does not appear to be obviously irrelevant to the Vergabekontrollsenat's decision for, if Truley was the only bidder capable of submitting a tender that complied with the tender document, the award of the contract to a competitor would have been unlawful.
In this respect Bestattung Wien's objection that, because of the estimated price, Truley's bid had come second from last is not the determinant factor.
28.
These considerations are, however, significant only if Bestattung Wien was in any way obliged to call for tenders for the services concerned.
This calls, first of all, for clarification whether it is a public body within the meaning of Article 1 of Directive 93/36 and Paragraph 12 of the WLVergG, the law passed to transpose the directive.
It cannot therefore be stated that there is obviously no connection between the questions submitted and the main proceedings. Nor are the questions submitted by the Vergabekontrollsenat general and hypothetical.
29.
The request for a preliminary ruling must therefore be considered admissible.
(2)
First question: meeting needs in the general interest
30.
In putting its first question, the Vergabekontrollsenat seeks to determine whether the activity of a funeral undertaker meets
"needs in the general interest"
.
The first part of the question in this context is whether this term should be interpreted in accordance with Community law or national law.
In the second part of the question the Vergabekontrollsenat asks whether Bestattung Wien perhaps meets a need in the general interest because of the provisions of Paragraph 10 of the WLBG.
(a) Point of reference for the interpretation of the term
"needs in the general interest"
(i) Views of the parties
31.
As regards the first part of the first question, the parties which have commented on the request for a preliminary ruling support all three conceivable solutions.
Truley and the Austrian Government take the view that the term should be interpreted solely in accordance with Community law.
Truley bases its view on the purpose of the directives on the award of public contracts, which, it argues, is to open the national markets to Community-wide competition.
The bidders should not only be informed by the tender documents but should know in advance what agencies are required to invite tenders.
In
BFI Holding (10) the Court ruled that this term should be interpreted objectively.
Moreover, a uniform interpretation is needed throughout the Community for reasons of legal certainty.
32.
The Austrian Government refers to case-law according to which concepts in Community law must be given an independent interpretation where there is no explicit or implicit reference to the law of the Member States.
(11)
It also argues that this vague concept was chosen deliberately during the legislative procedure. Nor, it submits, is there any reference in the legal material to the need to consult national law in the interpretation of the concept.
33.
Bestattung Wien, the French Government and the EFTA Surveillance Authority take the view that, although the concept should be interpreted in accordance with Community law, it must be applied in the light of national legislation.
34.
Bestattung Wien's view is that the directives on the award of public contracts merely sought to approximate the national rules, not to harmonise legislation, and that the circumstances surrounding each case should therefore be considered in any assessment of the concept.
An abstract and general definition would not reflect the functional nature of the concept of a contracting authority emphasised in the case-law.
(12)
The aim of Directive 93/36 was to open up the national public procurement markets, which were typically characterised by a general absence of competitive pressure to ensure that an open and economically appropriate award procedure free from discrimination was adopted.
It should always be asked, therefore, whether the body concerned was subject to the possibility of State control and influence.
Bodies whose conduct was not determined solely by general market mechanisms should be governed by the directives on the award of public contracts.
Although needs in the general interest were needs of interest to society as a whole, the concept had to be defined with regard to the legal systems of the individual Member States, which were empowered to determine what they saw as needs in the general interest.
To support this proposition, Bestattung Wien refers to Annex I to Directive 93/37.
From this it followed that that directive itself was geared to the special features in the various Member States.
The satisfaction of needs in the general interest did not pursue exclusively individual objectives, but was in the interest of society as a whole.
35.
The French Government proposes that the concept of general interest should be given a Community-law definition, but that, when it is applied, the circumstances in the Member State concerned should be taken into account.
It refers to the concepts of
"services of general economic interest"
in Articles 16 EC and 86 EC and to the Commission's communication on services of general interest.
(13) In
Mannesmann (14) and
BFI Holding
the Court also interpreted the concept in accordance with Community law.
However, it should be added, according to the French Government, that in those judgments the Court had considered the reason for the establishment of the body concerned, the manner in which it performed its tasks and a possible link between the activity ─ for which the body had been established ─ and a fundamental sovereign right of the State.
The particular situation obtaining in each case therefore justified differentiation in the application at national level of the criteria cited.
The concept of needs in the general interest was vague and fluid and depended on the extent to which the State wanted to intervene.
36.
The EFTA Surveillance Authority shares the view that the concept should be interpreted in accordance with Community law to ensure its uniform application. In support of its view it refers to the judgment in
Linster
.
(15)
It also points out that Article 1(b) of Directive 93/36 does not refer to the law of the Member States. However, it followed from the judgments in
Mannesmann
and
BFI Holding
that the provisions of national law should be considered in any assessment of the facts.
Thus in those cases the circumstances in which a body had been established and the national legislation applicable to its establishment had been taken into account. In much the same way Paragraph 10 of the WLBG should be considered in the present case.
37.
Finally, the Commission takes the view that the concept should be interpreted solely in accordance with national law.
In its judgment in
Mannesmann
the Court of Justice, when classifying the State printing office, focused on the task it performed and its importance for the operation of the State as revealed by the national legislation.
In its judgment in
BFI Holding
the Court, referring to the list in Annex I to Directive 93/37, had described the removal of household refuse as a need in the general interest.
It had emphasised in this context that these were needs which the State reserved the right to meet itself or over which it wished to retain a determining influence.
From these judgments the Commission infers that it is for the Member State concerned to determine what activities are undertaken in the general interest in each case.
It also bases its view on the Opinion of Advocate General La Pergola in
BFI Holding
, where it was stressed that the directive refers to the legislation of the Member States.
(16)
(ii) Appraisal
38.
The first part of the first question concerns a rather theoretical problem in law, namely whether the concept of
"needs in the general interest"
should be interpreted in accordance with Community law or in accordance with the law of the Member State in question.
39.
According to case-law, concepts of Community law must be given interpretations which are independent of the law of the Member States.
The only exception occurs where Community law explicitly refers to national law.
(17)
40.
While Article 1 of Directive 93/36 does not refer explicitly to national law, the third subparagraph of Article 1(b) includes a reference to the list of bodies or of categories of such bodies governed by public law and fulfilling the criteria referred to in the second subparagraph of Article 1(b) which are set out in Annex I to Directive 93/37/EEC.
This might implicitly constitute a reference.
According to the case-law, tacit references to the law of the Member States may also have to be taken into account.
(18)
41.
It must be borne in mind, however, that the list contained in Directive 93/37 is not exhaustive.
(19)
Although it is intended to be as complete as possible, it contains, in the final analysis, only examples of entities which are public bodies within the meaning of Article 1(b).
The legal definition given in Article 1(b) of Directive 93/37, which is identical to the definition in Article 1(b) of Directive 93/36 to be interpreted in the current proceedings, was inserted at the instigation of the European Parliament.
To ensure the widest possible application of the directive, the Parliament inserted the term
"organ governed by public law"
,
(20) which was subsequently changed to
"body"
.
The inclusion of the legal definition was meant to replace the lists which were to be compiled pursuant to Article 1(b) of Directive 71/305/EEC and which identified contracting authorities.
The intention was to ensure the application of the directive without exception
(21) and to extend the scope of the directive to include construction work performed by third parties and financed completely or partly, directly or indirectly, from public resources.
(22)
The point of the general definition of the term
"contracting authority"
is specifically to ensure that, as far as possible, all entities physically belonging to the public sector are required to invite tenders whether or not they are included in the list.
Thus the list is not exhaustive.
To see in the reference to the list an implicit reference to national law does not therefore seem justified.
Consequently, the position continues to be that the concept of needs in the general interest must be interpreted in accordance with Community law.
42.
An interpretation based solely on Community law is required not only because of the independence of Community law but also to ensure its uniform application.
(23)
The unity of the Community legal system would be threatened if the concept of
"needs in the general interest"
were interpreted differently from one Member State to another.
One and the same activity cannot be deemed to be in the general interest in one Member State and not to be in the general interest in another, since an authority in one Member State might then be obliged to call for tenders, while an authority entrusted with the same tasks in another Member State was not.
This might lead to distortions of competition, which would be precisely the opposite of the goal of the directive of creating competition in the area of public contracts (see the 14th recital in the preamble).
43.
An interpretation that depends on how the Member State concerned itself defines its area of activity seems equally incompatible with the purpose of the directives on the award of public contracts.
Directive 93/36, like the other directives on the award of public contracts, is based on Article 95 EC.
It is therefore meant to contribute to the establishment and functioning of the internal market.
In particular, it seeks to bring about the free movement of goods in the area of public supply contracts.
It therefore coordinates national legislation, as the fifth recital in the preamble to the directive shows.
This coordination can succeed, however, only if uniform criteria are also developed for the interpretation of such pivotal concepts as
"contracting authorities"
or, more accurately,
"public bodies"
.
The approximation of laws does not mean forgoing the uniform interpretation of pivotal concepts.
The transparency and predictability achieved with the directives on the award of public contracts would be destroyed again if the concept of
"needs in the general interest"
, which plays a crucial role in identifying contracting authorities required to call for tenders, might be interpreted differently from one Member State to another.
44.
It should be pointed out, however, that, even if the concept of
"needs in the general interest"
is interpreted in accordance with Community law, national law is not irrelevant, since the legal and actual circumstances of the individual case must be considered when this abstract legal concept is applied to practical situations.
45.
Thus, when categorising the Austrian State printing office, the Court of Justice took careful account of the fact that it was established by law and that, in printing passports, driving licences, identity cards and legislative and administrative documents, it performs a task which is in the general interest.
(24)
In
Telaustria
the Court based its views on the fact that Telaustria was established by law and that its purpose is to provide public telecommunications services.
(25)
And when classifying public development and construction entities ( "offices d'aménagement et de construction"
) and low-rent housing corporations ( "sociétés anonymes d'habitations à loyer modéré"
) in its judgment in Case C-237/99, it also referred to the national legislation relating to those entities.
(26)
46.
The conclusion to be drawn as regards the first part of the first question is therefore that the concept of needs in the general interest should be interpreted in accordance with Community law.
Only when this abstract legal concept is applied to practical situations should particular importance be attached to the legal and actual situation of the body concerned and, in this context, to national law.
(b) Funeral services as needs in the general interest
47.
By its second question the Vergabekontrollsenat asks whether it can perhaps be deduced from Paragraph 10 of the WLBG that Bestattung Wien meets
"needs in the general interest"
.
48.
It must first be stated in this regard that, given the division of responsibilities defined in Article 234 EC, it is for the national courts to apply to specific cases the provisions of Community law as interpreted by the Court of Justice.
(27)
In this respect the question submitted for a preliminary ruling should be rephrased in such a way that the Vergabekontrollsenat is asking whether legal subsidiarity of a regional or local authority's obligation to ensure the burial or cremation of a deceased person and to meet the associated costs is sufficient for it to be assumed that burial or cremation meets a need in the general interest.
(i) Views of the parties
49.
In line with its comments on the first part of the question, Truley takes the view that Paragraph 10 of the WLBG is immaterial when it comes to deciding whether Bestattung Wien meets a need in the general interest.
It maintains that the concept should be interpreted solely on the basis of Community law.
Truley relies for its view on the judgment in
BFI Holding
, in which the Court opted for a functional interpretation of that concept.
(28)
50.
As regards funeral services, however, Truley's position is that they satisfy a need in the general interest.
First, it claims this follows from a comparison with the list which is attached as Annex I to Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts
(29) and to which Article 1 of Directive 93/36 refers. Second, Truley regards funeral services to be one of the core general services which should, within the meaning of the judgment in
BFI Holding
, be provided by the State as the guardian of the interests of the public at large.
51.
Bestattung Wien too attaches no importance to Paragraph 10 of the WLBG maintaining that it is no more than a rule laid down by the health authority to prevent epidemics.
Nothing could be deduced from it for the classification of the funeral services in the wider sense which it provided.
52.
As regards funeral services, it proposes that a distinction should be made between services in the narrower sense (cemetery management, opening and closing of the grave, lowering of the body or ashes, conduct of exhumations), which are provided by the City of Vienna, and services in the wider sense (laying out the body, funeral rites, transporting the body, washing and dressing the body and placing it in the coffin, taking care of the grave, obtaining certificates, placing death notices in newspapers), which are provided by Bestattung Wien.
Only funeral services in the narrower sense satisfy needs in the general interest. Referring to the judgment in
BFI Holding
, it characterises these needs as being of the kind which either the State itself meets or over which it at least has a decisive influence.
The business of undertaker is intended to produce a profit and is thus an economic activity, not the satisfaction of a need in the general interest. Apart from the possibility open to the First Ministers of the
Länder
of setting maximum charges, it is not subject to State supervision, unlike the management of cemeteries, for example.
Nor is the examination of need required by the Gewerbeordnung an indication of the existence of a need in the general interest. At issue is a measure by which other trades, such as taxi firms, chimney sweeps and firms hiring out horse-drawn carriages, are affected.
Bestattung Wien therefore believes that, in the absence of supervision by State bodies, it does not meet needs in the general interest but pursues a profit-oriented activity.
53.
The Austrian Government shares Truley's and Bestattung Wien's views on Paragraph 10 of the WLBG.
Besides referring to the health aspect, it emphasises that Paragraph 10 contains rules on the defrayment of costs.
The satisfaction of a need in the general interest cannot be inferred from a subsidiary obligation of the City of Vienna to meet costs.
It would be different if the City was under a subsidiary obligation to provide a funeral service itself.
54.
In the context of the interpretation of the concept of general interest Austria refers to statements by the Commission on general services
(30) and to the Opinion of Advocate General Van Gerven in Case C-179/90.
(31)
It takes the view that the concept of general interest means the interest of the community, of the public at large, of society as a whole or ensuring public welfare and should be contrasted with the interest of the individual.
After all, this concept is evolving and cannot be accurately described.
Austria argues for the task of funeral undertakings to be regarded as a task which is performed in the general interest.
55.
The French Government and the EFTA Surveillance Authority, by contrast, consider Paragraph 10 of the WLBG to be an indication of the existence of a need in the general interest.
The French Government emphasises that, in this case, the public purse meets the costs for Bestattung Wien.
The EFTA Surveillance Authority infers from Paragraph 10 that the City of Vienna assumes the role of undertaker when no one else wants to become involved.
56.
Finally, the Commission, following on from its opinion that the concept of needs in the general interest should be interpreted in accordance with national law, takes the view that Paragraph 10 of the WLBG is evidence of a need in the general interest.
(ii) Appraisal
57.
In what follows the concept of needs in the general interest will be interpreted in accordance with Community law, and it will be decided whether Bestattung Wien satisfies such needs.
The first step in this process is to consider whether a need in the general interest can already be deduced from the subsidiary obligation on the City of Vienna to instigate action and to meet costs pursuant to Paragraph 10 of the WLBG.
58.
Paragraph 10 of the WLBG provides for the Municipal Corporation of the City of Vienna to arrange the funeral of a deceased person where no one makes arrangements for the funeral within five days of the death certification being issued.
Provision is also made for the City of Vienna to bear the funeral costs in so far as they are not to be met by third parties or covered by the deceased's estate.
This provision thus imposes a subsidiary obligation on the City of Vienna to arrange funerals and a subsidiary obligation to meet the attendant costs.
59.
First of all, the wording of Paragraph 10 of the WLBG shows that the City of Vienna is responsible for concerning itself with the funeral of the deceased where no one else does so.
This ensures that the obligation to bury or cremate the deceased enshrined in Paragraph 22 of the WLBG is fulfilled.
Paragraph 22 in conjunction with Paragraph 23 also reveals that burial and cremation may not take place outside the cemeteries, cineraria and other facilities provided for the purpose.
This provision is intended to afford protection against epidemics and other health hazards.
60.
It should also be borne in mind that Paragraph 10 appears in Part I, Section 1, of the WLBG, which is headed
"Coroner's activity"
.
This is a task performed by the police, the primary purpose being to determine the cause of death, as is evident from Paragraph 1(3) of the WLBG.
Reference should also be made to Paragraph 8(1) of the WLBG, which stipulates that the death certificate must include information designed to give protection against hazards emanating from corpses.
This provision too reveals that the protection of health is one of the reasons for requiring burial or cremation.
These considerations support the assumption that burial or cremation should be seen as a need in the general interest.
61.
In accordance with the above comments on the interpretation of Article 1(b) of Directive 93/36, all legal and factual circumstances of the individual case should be taken into account in the interpretation of the concept of
"needs in the general interest"
.
In the following it will therefore be considered whether it can be inferred from the other statements in the decision on a preliminary ruling that funeral services are a need in the general interest.
62.
Nearly all of the parties which have set out their views in these proceedings have attempted to define the concept of needs in the general interest by comparing them with needs which are satisfied in the interests of the individual.
Truley and the Austrian Government in particular have tried to introduce into the discussion the ideas developed in the context of general services that benefit the public as a whole and not just individuals.
63.
As already pointed out, Directive 93/36 does not define the concept of needs in the general interest.
Nor do the other directives on the award of public contracts ─ Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts,
(32) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
(33) and Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts
(34) ─ contain a definition of this term, which is also used in them.
64.
Nor, so far as can be seen, has the Court of Justice yet adopted a generally applicable definition of what is meant by the concept of needs in the general interest as used in the directives on the award of public contracts.
In the case-law, however, a number of needs of general interest have meanwhile been recognised: the production of such official printed documents as passports, driving licences and identity cards,
(35) the removal and treatment of household refuse,
(36) the management of national forests and woodland industries,
(37) the management of a university,
(38) the operation of public telecommunications networks and the provision of public telecommunications services,
(39) the activities of the
"Offices publics d'aménagement et de construction"
and of a
"Société anonyme d'habitations à loyer modéré"
, which provide low-rent housing,
(40) and, finally, the organisation of fairs and exhibitions.
(41)
65.
The examples given above concern circumstances which in principle benefit the general public.
As stated earlier, burial or cremation is intended not least to afford protection against epidemics and other public health hazards.
In this respect at least, funeral services should probably be deemed to satisfy a need in the general interest.
If, then, they are seen as a single service, as all involved in the proceedings except Bestattung Wien consider them, it will be assumed that Bestattung Wien meets a need in the general interest.
66.
Bestattung Wien proposes, however, that a distinction should be made between funeral services in the narrower sense (cemetery activities, burial and exhumation) and funeral services in the wider sense (taking care of the grave, laying out the body, obtaining certificates, placing death notices in newspapers). It argues that it undertakes only activities forming part of funeral services in the wider sense and does not therefore meet any needs in the general interest: its activities are purely commercial.
67.
The activities listed by Bestattung Wien under the heading of funeral services in the wider sense correspond to the list in Paragraph 130(1), points 1 and 2, of the Gewerbeordnung.
They are activities in which the emphasis is less on the general interest in health protection than on the interest of the individual in the observance of funeral rites.
This might argue for the proposed distinction.
68.
It should be borne in mind, however, that the provisions of the Gewerbeordnung and the WLBG to which the requesting court refers do not support the differentiation of the various areas of activity indicated by Bestattung Wien.
The very fact that in the legislation of the
Land
of Vienna funeral services are governed by one and the same law, the Law on Undertaking
(42) ( "Wiener Leichen- und Bestattungsgesetz"
), indicates that the two areas cannot be separated.
Reference should also be made to Paragraph 34(4) of the WLBG, according to which
"the employees of the legal entity or the employees of the undertaking appointed by the legal entity shall carry out the funeral ceremony in the mortuary and consecration rooms and transport the body or ashes to the grave ... at one of the cemeteries of the City of Vienna.
They shall also open and close all graves, lower the body or ashes and carry out exhumations ... ."
This provision covers all the various activities relating to the ceremony and burial differentiated by Bestattung Wien.
This too argues against any distinction being made between the various areas of responsibility.
69.
Similarly, Paragraph 130 of the Gewerbeordnung 1994 covers all the various services associated with funerals.
In particular, Paragraph 130(1), point 1, refers to tasks connected with laying out the deceased and with the funeral ceremony, which are also the subject of Paragraph 33(4) of the WLBG. This too argues against the possibility of dividing the various activities into those undertaken in the general interest and those undertaken in the interest of an individual.
70.
The following must also be considered.
A factor to be taken into account in the examination of need pursuant to Paragraph 131 of the Gewerbeordnung is whether the municipality has made adequate provision for funerals.
This implies that in principle it is the municipality which bears responsibility for funerals.
As the example of the City of Vienna shows, it may perform this task itself, as the City did until 1999 through a dependent component undertaking of Wiener Stadtwerke, or entrust it to third parties.
However, the fact that the municipality ensures the performance of this task, including the activities referred to in Paragraph 130(1) and (2) of the Gewerbeordnung, which Bestattung Wien classifies as funeral services in the wider sense, argues for a uniform view to be taken of the various aspects of funeral services and for them to be classified as a need in the general interest.
71.
It must therefore be assumed from the above that the activity of undertaking meets a need in the general interest.
(3)
Second question: meeting needs not having an industrial or commercial character
72.
The purpose of the second question is to determine whether funeral services meet a need that does not have an industrial or commercial character.
The Vergabekontrollsenat notes that some 550 undertakers are in operation throughout Austria.
It also points out that the Landeshauptmann may impose a ceiling on charges for funeral services.
It adds that in the main proceedings Truley advanced the view, which went unchallenged, that there was no significant competition in the local market in Vienna.
According to the comments submitted by Truley during the preliminary ruling proceedings, Bestattung Wien is, under an agreement with the City of Vienna, the only provider of funeral services in Vienna.
The Vergabekontrollsenat therefore asks whether the existence of significant competition is a condition for deciding that it is not a question of meeting needs not having an industrial or commercial character.
In this context it would also like to know whether the factual or legal circumstances are the determinant factors in this respect and in which market, the local one or the national one, it is required to identify competition.
(a) Views of the parties
73.
During its analysis of the second question Truley refers to the judgment in
British Telecommunications
,
(43) from which it emerges, Truley claims, that there must be competition in both fact and in law.
In particular, all the characteristics of the services concerned, the existence of alternative services, price factors, the dominance or otherwise of the contracting entity's position on the market and any legal constraints must be taken into account.
In Truley's view, even as a matter of law there is no competition in the market for funeral services. The WLBG imposed on the City of Vienna a subsidiary obligation in public law to ensure the burial or cremation of the dead. This is true regardless of whether it performs this function itself or entrusts it to a private undertaking.
Furthermore, the granting of licences pursuant to the Gewerbeordnung is linked to an examination of need.
It largely excludes the pressure of competition and might lead to an undertaking occupying a monopoly position in a given area.
Competition is also restricted by the Landeshauptmann's option of imposing a ceiling on charges since this prevents the formation of prices by the free play of market forces.
This option was meant not least to help prevent a monopoly position from being abused.
74.
Nor, Truley maintains, is there any competition in fact.
Under an
"exclusive agreement"
between itself and the City of Vienna Bestattung Wien is the only provider of these services in Vienna.
However, even if the existence of significant competition is assumed, the non-industrial or non-commercial character of the need for funeral services stems from the fact that it is one of the core responsibilities of the State within the meaning of the judgment in
BFI Holding
.
(44) Where these needs are concerned, the existence of private providers does not rule out the assumption of non-industrial or non-commercial character.
75.
From the commentaries on the Bundesvergabegesetz (the Federal law governing the award of public contracts) it may, moreover, be deduced that classification as a contracting authority is not justified only where the entity concerned has to operate under the same conditions as its private competitors. This is not true of Bestattung Wien since even its act of establishment enjoyed preferential tax treatment.
In addition, its employees, who were all taken over from Wiener Stadtwerke, have a special employment relationship with the City's Municipal Corporation.
It must also be assumed that their remuneration and pension entitlements are safeguarded by the Municipal Corporation.
In this respect Bestattung Wien is in a better position than other funeral undertakings.
76.
Referring to the literature on the legislation concerning the award of public contracts, Truley advances the view that, in the event of purely formal privatisation as in the present instance, the resulting entity continues to be a contracting authority.
77.
Bestattung Wien shares the view that the second question should be considered on the basis of the existence of competition.
Its conclusion, however, differs from Truley's.
The determinant legal framework is, in its view, the Gewerbeordnung, according to which the business of funeral undertaking is not reserved for the State or specific entities, but may in principle be carried on by any undertaking.
The fact that there is only one provider in certain areas is not necessarily due to the examination of need, but may also be the outcome of an entrepreneurial decision freely taken.
In Austria there is, moreover, competition in the form of some 550 undertakers, all of whom are permitted to operate throughout the country.
In Bestattung Wien's opinion there is also price competition, since a ceiling is not imposed on the charges for all funeral services. The price levels in Vienna for services not covered by the ceiling correspond to the national average.
It also believes that it is an undertaking which operates in accordance with purely economic principles and makes a profit.
The municipal authorities do not exercise any influence over its entrepreneurial decisions.
For this reason too, it should not be classified as a body governed by public law within the meaning of Directive 93/36.
78.
The Austrian and French Governments, the Commission and the EFTA Surveillance Authority take the view that the existence of competition is merely an indication that a need of an industrial or commercial character is being met.
In each and every case the legal and factual situation must be examined.
They also advance the following arguments:
79.
Like Bestattung Wien, the Austrian Government points out that an undertaking is not in competition with others if it is preferred to other undertakings by the State as a result of certain legal arrangements or as a matter of fact.
It is enough, however, for competition to be possible in fact and in law.
On the other hand, there is no need, in its view, for competition to exist in fact, since this also depends on entrepreneurial decisions.
80.
Referring to the judgments in
Mannesmann
andBFI Holding
, the French Government submits that the existence of private providers in the market concerned does not rule out the assumption of an activity not having an industrial or commercial character.
The case-law, it submits, shows that three criteria should be examined: the purpose for which the entity was established; the manner in which it performs its tasks; and the connection between its activities and the prerogatives of State action.
All three criteria are satisfied in the present case.
Bestattung Wien was established to meet a need previously met by the City.
The City's subsidiary obligation to meet the costs pursuant to Paragraph 10 of the WLBG has a direct influence on the manner in which Bestattung Wien performs its tasks, and the subsidiary obligation to arrange funerals means that a need relating to health protection and hygiene is satisfied.
Consequently, Bestattung Wien was established for the special purpose of meeting needs in the general interest not having an industrial or commercial character.
81.
The Commission is of the opinion that the existence of competition is not a condition sine qua non for deciding whether a need not have an industrial or commercial character is being satisfied.
All factual and legal circumstances should be considered in answering that question.
82.
The EFTA Surveillance Authority shares the view that, although Bestattung Wien is exposed to competition, it meets a need in the general interest not having an industrial or commercial character because of Paragraph 10 of the WLBG.
(b) Appraisal
83.
In its judgment in
BFI Holding
the Court ruled that the existence of significant competition, and in particular the fact that the entity concerned is faced with competition from private service providers in the marketplace, may be indicative of the absence of a need in the general interest not having an industrial or commercial character.
(45)
However, the existence of competition in a sector is merely an indication that a given need has an industrial or commercial character.
For, as the Court also stated in this judgment, the term
"needs in the general interest, not having an industrial or commercial character"
does not exclude needs which are or could be satisfied by private undertakings as well.
(46)
This case-law has been confirmed in the judgment in
Agorà and Excelsior. (47)
84.
In view of this case-law it should first be said with regard to the requesting court's second question that the existence of significant competition is not a condition
sine qua non
for designation of the need as not being of an industrial or commercial character.
The existence of significant competition is rather no more than an indication of the satisfaction of an industrial or commercial need.
85.
As regards the question whether in law and/or in fact competition must be no more than possible or must actually exist, it must first be said that according to the case-law cited above this can no longer be the decisive factor.
If the existence of competition is merely an indication of the satisfaction of an industrial or commercial need, but this is not the only decisive issue, it cannot be decisive for the interpretation of the term
"needs of an industrial or commercial character"
whether competition is only possible in law or is also possible in fact or exists.
86.
It should also be pointed out that in its judgment in
BFI Holding
the Court emphasised that the definition of a contracting authority is geared to the need and not to whether it may also be satisfied by private undertakings.
(48)
What is decisive, therefore, is the analysis of the need concerned.
87.
Besides commenting on the indicative effect of competition in a given market, the Court stressed in its judgment in
BFI Holding
, with regard to the description of needs in the general interest not having an industrial or commercial character, that in general the needs in question are ones which are met otherwise than by the availability of goods or services in the marketplace and which, for reasons associated with the general interest, the State itself chooses to meet or over which it wishes to retain a decisive influence.
(49)
These statements were confirmed in the judgment in
Agorà and Excelsior
.
(50)
88.
From these comments it follows that all circumstances, both legal and factual, must be taken into account in determining whether competition exists.
It should thus be considered whether funeral services are provided otherwise than through the relevant market or whether, for reasons associated with the general interest, the City of Vienna itself chooses to provide them or at least to retain a decisive influence over their provision.
89.
To answer these questions, the relevant market must first be identified.
This is a question of fact, which must be answered by the requesting court itself.
(51)
In this context it should be borne in mind, on the one hand, that more than 500 registered undertakers may in principle operate throughout Austria.
This may be an indication of the existence of a national market.
On the other hand, it should be remembered that the Gewerbeordnung requires a licence to be obtained and the need for funeral services to be examined in this context.
This examination has to be made by the Landeshauptmann, which may be an indication of a market limited to the federal
Land
concerned.
90.
The examination to be made of the need for funeral services is also important in another respect.
For one thing, it limits competition, regardless of how the relevant market is defined in geographical terms.
The public authorities retain a crucial influence at least as regards the number of providers operating in the market.
91.
For another, a particularly important factor to be considered in the examination of the need for funeral services pursuant to Paragraph 131(2) of the Gewerbeordnung is whether the municipality has made adequate provision for funerals.
As stated above in connection with the first question, this implies that the municipality is active in the field of funeral services and thus possibly reserves this sector for itself.
These two aspects must be assessed by the requesting court in the light of the case-law cited above.
92.
It does not necessarily follow from the last of the factors referred to that the municipality reserves this activity for itself.
Even if it arranges funerals itself, there may be an additional need which it does not itself meet, and it might therefore permit other undertakings to operate despite its own activity.
If it reserves this activity for itself, however, the fact that it does so is likely to be a circumstance which should be considered in the classification of funeral services, since the public authorities' deliberate reservation of an activity for themselves is a ground for applying the directives on the award of public contracts to the entity which benefits in this way.
93.
The question whether or not a need has an industrial or commercial character arises when it comes to determining the scope
ratione personae
of the directives. If the authorities reserve a given activity for themselves, the danger is that the decisions taken in the context of the exercise of that activity will be influenced by factors other than purely economic considerations.
There is thus cause to apply the directives on the award of public contracts and so to assume that the need which is satisfied does not have an industrial or commercial character.
Truley's contention that under an agreement with the City of Vienna Bestattung Wien has an exclusive right to provide funeral services in Vienna should be examined more closely by the requesting court in this context.
94.
From the legal point of view, the national court should also bear in mind that competition in the market for funeral services is restricted not only by the aforementioned examination of the need for funeral services pursuant to Paragraph 131 of the Gewerbeordnung but also by the fact that the Landeshauptmann is required by Paragraph 132 of the Gewerbeordnung to set maximum charges. Bestattung Wien's objection that this is not true of all services does not necessarily seem relevant.
The wording of Paragraph 132 of the Gewerbeordnung does not, at least, provide for any objective restriction to be imposed on certain services.
In any event, the competition that is possible in law as a result of the licensing of several undertakers is restricted in so far as charges are not determined by the free interaction of supply and demand.
This might be an indication that the service within the meaning of the case-law cited above can be provided otherwise than by the provision of services in the market.
The public authorities exercise some influence over the provision of funeral services, moreover, by setting maximum charges, which, according to the case-law cited above, should similarly be taken into account.
95.
In my Opinions in
Agorà and Excelsior
and
Universale Bau
I proposed that, when it was being considered whether an entity met needs not having an industrial or commercial character, one of the questions that should be asked was whether the entity bore the financial risk of its decisions.
If it had to bear the financial consequences of its decisions itself, an industrial or commercial activity was likely to be involved.
(52)
If this yardstick is applied to Bestattung Wien, the requesting court should first consider the extent to which the articles of association of Bestattung Wien impose an obligation on the City to offset any losses incurred by Bestattung Wien.
Truley's comments on the legal position of Bestattung Wien's employees and the possible protection of their remuneration and pension entitlements should also be examined.
The extent to which the shareholders, i.e. Wiener Stadtwerke, which is in turn owned by the City, are obliged to contribute more capital if losses are incurred may also play a part in this context.
96.
The subsidiary rule on meeting costs in the second sentence of Paragraph 10(1) of the WLBG, however, does not seem capable on its own of supporting the assumption that Bestattung Wien does not bear any economic risk.
The rule on costs applies only where funeral costs are not met in some other way.
In principle, however, the costs would be reimbursed to any undertaker.
If, then, Paragraph 10 of the WLBG was interpreted as having the meaning outlined, any funeral activity would of necessity not have an industrial or commercial character.
This does not appear to be compatible with the rules on the business of undertaker in the Gewerbeordnung, which require that it also be possible for this activity to be undertaken commercially.
97.
The answer to the second question is therefore that for the interpretation of the term
"needs not having an industrial or commercial character"
(a)
the existence of significant competition is not an imperative condition for assuming that a need has an industrial or commercial character, and
(b)
both the factual and the legal circumstances are determinant factors in establishing the level of competition.
(4)
Third question: supervision by the State or a regional or local authority
98.
In the third question the Vergabekontrollsenat asks whether the powers of the Kontrollamt of the City of Vienna in relation to Bestattung Wien result in the undertaking being monitored by the regional or local authority within the meaning of the third condition of Article 1(b) of Directive 93/36.
(a) Views of the parties
99.
Truley's view is that Bestattung Wien is subject to supervision by the City of Vienna within the meaning of Directive 93/36.
It bases this view firstly on the ownership structure of Bestattung Wien: Bestattung Wien is a wholly-owned subsidiary of Wiener Stadtwerke Holding AG, whose sole shareholder is the City of Vienna.
As a result of this ownership structure Bestattung Wien is also subject to supervision by the Austrian Court of Auditors.
In addition, some members of Bestattung Wien's supervisory board are members of the management board of Wiener Stadtwerke Holding AG.
The City's influence is also evident where the possibility of insolvency is concerned.
Pursuant to Paragraph 10 of the WLBG, the City is always obliged to contribute appropriate capital if Bestattung Wien faces financial difficulty.
Thus Bestattung Wien is not forced to take its decisions solely on the basis of economic criteria, since it does not bear the financial risk of its activities.
Truley also refers to Paragraph 10.3 of the articles of association of Bestattung Wien, according to which Vienna's Kontrollamt examines Bestattung Wien's day-to-day business management and reports its findings to the City.
100.
Bestattung Wien, the Austrian Government and the Commission, on the other hand, take the view that a posteriori supervision, as carried out by the Kontrollamt of the City of Vienna in Bestattung Wien's case, does not meet the requirements to be satisfied by supervision within the meaning of Article 1 of Directive 93/36. Their various submissions are as follows:
101.
Bestattung Wien maintains that supervision by the Kontrollamt has no influence on its day-to-day business or its business policy.
It constitutes no more than a flow of information, which is permissible by the standards of competition law.
102.
The Austrian Government adds that Article 1 of Directive 93/36 presupposes the possibility of exercising ex ante influence, enabling non-economic considerations to guide the decisions of the entity concerned.
103.
The Commission refers to the Opinion of Advocate General Mischo in Case C-237/99
(53) and takes the view that supervision within the meaning of Article 1 of Directive 93/36 is characterised by the entity's heavy dependence on the public authorities.
It believes this supervision must be reflected in the possibility of influencing day-to-day business, which is not true of the supervision of Bestattung Wien by the Kontrollamt of the City of Vienna.
104.
The French Government focuses less on the timing of supervision than on its effect.
Referring to Advocate General Mischo's comments in Case C-237/99,
(54) it asks whether the supervision merely concerns proper accounting or causes the entity's business practices to follow a given course.
As the Kontrollamt also examines the economy, efficiency and expediency of Bestattung Wien's business management, the possibility of exercising influence within the meaning of Article 1 of Directive 93/36 exists in this case.
105.
The EFTA Surveillance Authority is of the opinion that the situation described in Article 1 of Directive 93/36 is characterised by a particularly close relationship of dependence.
It suggests that the requesting court should consider whether Bestattung Wien has a similarly close relationship of dependence with the City.
(b) Appraisal
106.
The third question seeks a determination as to whether, given the Kontrollamt's power to carry out investigations at Bestattung Wien, it can be assumed that there is a possibility of exercising influence within the meaning of the third criterion of Article 1(b) of Directive 93/36.
As the Court ruled in its judgement in Case C-237/99, the object when examining this criterion is to determine whether supervision forges a link with the public authorities that enables the latter to influence the decisions of the entity concerned in relation to public contracts.
This means that the link existing between the entity and the public authorities must be equivalent to that which exists where one of the other two alternative criteria is fulfilled, namely where the body in question is financed, for the most part, by the public authorities or where the latter appoint more than half of the members of its managerial organs.
(55)
107.
Pursuant to Paragraph 10.3 of the articles of association of Bestattung Wien, the Kontrollamt is entitled to examine both Bestattung Wien's business management, in terms of proper accounting, regularity, economy, efficiency and expediency, and the annual accounts and situation report, including the recording of receipts and other documents, to inspect its business premises and facilities, and to report the findings of such examinations to the competent authorities, the shareholders and the City of Vienna.
The question now is whether it may justifiably be assumed from this possibility of supervising Bestattung Wien that its day-to-day business and especially the award of contracts can be influenced.
One important factor to be determined to this end is the time at which the supervision takes place.
108.
In the third of the questions referred to the Court for a preliminary ruling the Vergabekontrollsenat obviously assumes that the Kontrollamt's supervision is a posteriori.
If this is the case, it would seem impossible in principle to infer influence equivalent to that referred to in the third criterion in Article 1(b) of Directive 93/36.
109.
It seems doubtful, on the other hand, that the Kontrollamt's power relates to a posteriori supervision.
According to Paragraph 10.3 of the articles of association of Bestattung Wien, the Kontrollamt of the City of Vienna is authorised to examine not only the annual accounts but also Bestattung Wien's
"business management"
.
The first point to be made, therefore, is that the wording of this provision does not limit the Kontrollamt's power to a posteriori supervision. Bestattung Wien's annual accounts are reviewed a posteriori.
Under the articles of association however, the Kontrollamt's supervisory power also extends to
"business management"
.
110.
It should also be pointed out that the aforementioned provision empowers the Kontrollamt to examine not only Bestattung Wien's business management for proper accounting and regularity but also its transactions for economy, efficiency and expediency.
The examination of expediency in particular indicates a very extensive supervisory power.
It extends beyond the monitoring of proper accounting and monitoring confined to ensuring the lawfulness of the conduct of business and indicates a close relationship between supervisor and supervised.
It does indeed correspond to the
"review of conduct"
required by Paragraph 73(1) of the WStV for entities forming part of the municipal administration.
111.
This substantive equivalence is probably due to Paragraph 73(2) and (3) of the WStV, which requires the Kontrollamt to examine commercial undertakings in which the City has a holding. This too shows how close Bestattung Wien and the City of Vienna are.
112.
An added factor is that the provision in question authorises the Kontrollamt not only to examine documents and receipts, i.e. to carry out an audit: it may also inspect Bestattung Wien's business premises and facilities.
This too constitutes an extensive supervisory power, enabling the Kontrollamt to conduct independent examinations.
Among other things, the provision is likely to ensure that the obligation pursuant to Paragraph 73(6) of the WStV to carry out specific acts in relation to the review of conduct is fulfilled.
This again reflects a close link between the municipality and Bestattung Wien.
113.
Finally, the Kontrollamt reports the findings of its examination pursuant to Paragraph 10.3 of the articles of association not only to the competent authorities and Bestattung Wien's shareholders but also to the City of Vienna.
Apart from the fact that the City of Vienna holds all the shares in Bestattung Wien and so currently has to be informed in its capacity as shareholder, this provision enables the City to be informed even if it ceases to be a shareholder through Wiener Stadtwerke Holding AG.
In this respect too, the public authorities exercise very wide-ranging control.
114.
It should perhaps be added that the question raised by the requesting court seeks to determine how far Bestattung Wien fulfils the third criterion, which, according to Article 1(b) of Directive 93/36, must be satisfied for an entity to be deemed to be governed by public law and for the directives on the award of public contracts to become applicable.
It should be pointed out in this connection that Bestattung Wien is wholly owned by Wiener Stadtwerke Holding AG, which is itself wholly owned by the City of Vienna.
In its judgment in
Mannesmann
the Court of Justice inferred inter alia from the Austrian State's retention of the majority of the share capital of the State printing office that the latter was subject to State supervision.
(56)
In its judgment in
Telaustria
it confirmed this approach and similarly inferred from the State's shares in that company that it was able to exercise influence over it.
(57)
To this extent, it seems perfectly acceptable to agree that the regional or local authority has a decisive influence on Bestattung Wien.
115.
The answer to the third question is therefore that the requirement laid down in Article 1(b) of Directive 93/36 that the management of a body governed by public law be subject to supervision by the State or a regional or local authority is also fulfilled by a review of the business management and the expediency of the actions of the body examined which includes a separate inspection of its business premises and facilities and provides for an obligation to report to the municipal authority which holds all the shares in the body examined through another undertaking all of whose shares it holds.
VI ─ Conclusion
116.
In view of the foregoing considerations I propose that the questions submitted for a preliminary ruling should be answered as follows:
(1)
The term
"needs in the general interest"
should be interpreted in accordance with Community law.
Only when this abstract legal concept is applied to a practical set of circumstances do the legal and factual situation of the body concerned and, in this context, national law become relevant.
Funeral services constitute a need in the general interest.
(2)
In the interpretation of the requirement
"meeting needs ... not having an industrial or commercial character"
(a)
the existence of significant competition is not an imperative condition for assuming that a need has an industrial or commercial character, and
(b)
both the factual and the legal circumstances are determinant factors in establishing the extent to which competition occurs.
(3)
The requirement laid down in Article 1(b) of Directive 93/36 that the management of the body governed by public law must be subject to supervision by the State or a regional or local authority is also fulfilled by a review of the business management and the expediency of the actions of the body examined which includes a separate inspection of its business premises and facilities and provides for an obligation to report to the municipal authority that holds all the shares in the body examined through another undertaking all of whose shares it holds.
(1) .
(2)
OJ 1993 L 199, p. 1.
(3)
Published in BGBl. No 194/1999 and amended in BGBl. No 136/2001.
(4)
LGBl. No 31/1970, in the version published in LGBl. No 25/1988.
(5)
Wiener LGBl. No 36/1955, in the version published in LGBl. No 30/1999.
(6)
LGBl. No 17/1999 of 18 March 1999.
(7)
Judgment in Case C-103/97
Köllensperger and Atzwanger
[1999] ECR I-551, paragraph 22.
(8)
See the judgment in Joined Cases C-223/99 and C-260/99
Agorà and Excelsior
[2001] ECR I-3605, paragraph 18, Case 5/77
Denkavit
[1977] ECR 1555, paragraphs 17 to 19, and Case 244/80
Foglia
[1981] ECR 3045, paragraph 15.
(9)
Judgment in Joined Cases C-223/99 and C-260/99 (cited in footnote 8), paragraph 20; judgment in Case 244/80
Foglia
(cited in footnote 8), paragraph 18; judgment in Case C-83/91
Meilicke
[1992] ECR I-4871, paragraphs 22 to 26.
(10)
Judgment in Case C-360/96
BFI Holding
[1998] ECR I-6821.
(11)
Judgment in Case 327/82
Ekro
[1984] ECR 107; judgment in Case C-273/90
Meico-Fell
[1991] ECR I-5569; judgment in Case 64/81
Corman
v
Hauptzollamt Gronau
[1982] ECR 13.
(12)
It is referring to the judgment in Case 31/87
Beentjes
[1988] ECR 4635.
(13)
Communication from the Commission,
"Services of general interest in Europe"
, 20 September 2000, OJ 2001 C 17 of 19 January 2001, p. 4.
(14)
Judgment in Case C-44/96
Mannesmann Anlagenbau Austria and Others
[1998] ECR I-73.
(15)
Judgment in Case C-287/98
Linster
[2000] ECR I-6917.
(16)
Opinion of Advocate General La Pergola in Case C-360/96
BFI Holding
[1998] ECR I-6821, I-6824, point 43.
(17)
Judgments in
Linster
(cited in footnote 15), paragraph 43,
Ekro
(cited in footnote 11), paragraph 11, and
Corman
(cited in footnote 11), paragraph 8.
(18)
Judgment in
Ekro
(cited in footnote 11), paragraph 14. See also the judgment in
Meico-Fell
(cited in footnote 11), paragraphs 9 to 12, which concerned a reference to national criminal law.
(19)
See the judgments in
BFI Holding
(cited in footnote 10), paragraph 50, and in
Agorà and Excelsior
(cited in footnote 8), paragraph 36.
(20)
Amendment No 4, Report of the Committee on Economic and Monetary Affairs and Industrial Policy,
Session Documents of the European Parliament
, 1988-89, Doc. A2-37/88, p. 6, and explanatory statement, p. 31. See, however, the proposal from the Commission for a Council directive amending Directive 71/305/EEC on the coordination of procedures for the award of public building contracts, COM(86) 679 final of 23 December 1986, pp. 6 and 22, in which the Commission proposed the term
"legal persons"
.
(21)
See the aforementioned report, explanatory statement, p. 31.
(22)
See the comments by the rapporteur, Beumer, at the European Parliament's sitting of 17 May 1988,
Report of Proceedings of the European Parliament
, 17 May 1988, No 2-365, p. 83.
(23)
Judgment in
Linster
(cited in footnote 15), paragraph 43; judgment in
Corman
(cited in footnote 11), paragraph 8. This problem is also addressed in the judgment in
Meico-Fell
(cited in footnote 11), paragraphs 9 to 12. The divergence arising from the differences in national legislation was accepted in this judgment because, as Community law then stood, the classification of a certain kind of conduct for the purposes of criminal law was not harmonised and was therefore governed by national law.
(24)
Judgment in
Mannesmann Anlagenbau Austria and Others
, cited in footnote 14, paragraphs 22 to 25.
(25)
Judgment in Case C-324/98
Telaustria and Telefonadress
[2000] ECR I-10745, paragraph 36.
(26)
Judgment in Case C-237/99
Commission
v
France
[2001] ECR I-939, paragraphs 45 and 51 et seq.
(27)
See the judgments in Case C-320/88
Shipping and Forwarding Enterprise Safe
[1990] ECR I-285, paragraph 11, Case C-107/98
Teckal
[1999] ECR I-8121, paragraph 31, and Joined Cases
Agorà and Excelsior
(cited in footnote 8), paragraph 23.
(28)
Truley is referring to the judgment in
BFI Holding
(cited in footnote 10), paragraph 62.
(29)
OJ 1993 L 199, p. 54.
(30)
Communication from the Commission COM (96) 443,
"Services of general interest in Europe"
, OJ 1996 C 281, 26 September 1996, p. 3, and Communication from the Commission,
"Services of general interest in Europe"
, OJ 2001 C 17, 19 January 2001, p. 4.
(31)
Opinion in Case C-179/90
Merci convenzionali porto di Genova
[1991] ECR I-5889, I-5905, point 27.
(32)
OJ 1993 L 199, p. 54.
(33)
OJ 1993 L 199, p. 84.
(34)
OJ 1992 L 209, p. 1.
(35)
Judgment in
Mannesmann Anlagenbau and Others
(cited in footnote 14), paragraph 24.
(36)
Judgment in
BFI Holding
(cited in footnote 10), paragraph 52.
(37)
Judgments in Case C-353/96
Commission
v
Ireland
[1998] ECR I-8565, paragraph 37, and Case C-306/97
Connemara Machine Turf
[1998] ECR I-8761, paragraph 32.
(38)
Judgment in Case C-380/98
The University of Cambridge
[2000] ECR I-8035, paragraph 19.
(39)
Judgment in
Telaustria
(cited in footnote 25), paragraphs 35 to 37.
(40)
Judgment in Case C-237/99
Commission
v
France
(cited in footnote 26), paragraphs 45 and 47.
(41)
Judgment in
Agorà and Excelsior
(cited in footnote 8), paragraph 33.
(42)
Law of 16 October 1970, LGBl. No 31/1970; subsequent amendments of 30 July 1974, LGBl. No 38/1974, 28 February 1986, LGBl. No 20/1986, and 25 April 1988, LGBI. No 25/1988.
(43)
Judgment in Case C-392/93
British Telecommunications
[1996] ECR I-1631.
(44)
Truley refers to paragraph 52 of the judgment in
BFI Holding
(cited in footnote 10).
(45)
Judgment in
BFI Holding
(cited in footnote 10), paragraph 49.
(46)
Judgment in
BFI Holding
(cited in footnote 10), paragraph 53.
(47)
Judgment in
Agorà and Excelsior
(cited in footnote 8), paragraph 38 et seq.
(48)
Judgment in
BFI Holding
(cited in footnote 10), paragraph 40.
(49)
Judgment in
BFI Holding
(cited in footnote 10), paragraphs 50 and 51.
(50)
Judgment in
Agorà and Excelsior
(cited in footnote 8), paragraph 37.
(51)
For the equivalent question in competition law, see the judgment in Case C-475/99
Ambulanz Glöckner
[2001] ECR I-8089, paragraph 31 et seq.).
(52)
See the comments in the Opinion in Joined Cases C-223/99 and C-260/99
Agorà and Excelsior
[2001] ECR I-3605, I-3607, point 67, and the Opinion in Case C-470/99
Universale Bau
[2002] ECR I-11617, points 27 and 45.
(53)
Opinion in Case C-237/99
Commission
v
France
[2001] ECR I-939.
(54)
Opinion in Case C-237/99
Commission
v
France
(cited in footnote 53), point 51.
(55)
Judgment in Case C-237/99
Commission
v
France
(cited in footnote 26), paragraph 48.
(56)
Judgment in
Mannesmann Anlagenbau Austria and Others
(cited in footnote 14), paragraph 28.
(57)
Judgment in
Telaustria and Telefonadress
(cited in footnote 25), paragraph 35.