EN Official Journal of the European Union C 6/6

Judgment of the Court (Third Chamber) of 13 November 2008 (Reference for a preliminary ruling from the Conseil d'État — Belgium) — Coditel Brabant SPRL v Commune d'Uccle, Région de Bruxelles-Capitale

(Case C-324/07) (1)

(Public procurement - Tendering procedures - Public service concessions - Concession for the operation of a municipal cable television network - Award by a municipality to an inter-municipal cooperative society - Obligation of transparency - Conditions - Whether the control exercised by the concession-granting authority over the concessionaire is similar to that exercised over its own departments)

(2009/C 6/10)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Coditel Brabant SPRL

Defendant: Commune d'Uccle, Région de Bruxelles-Capitale

Third party: Société Intercommunale pour la Diffusion de la Télévision (Brutélé)

Re:

Preliminary ruling — Conseil d'État — Interpretation of the fundamental principles of primary Community law (principles of non-discrimination and transparency) and of the exceptions to those principles in the area of public service concessions — Concession relating to the operation of a municipal television network — Need for competitive tendering except in those cases where the awarding authority exercises, over the concessionaire, a control similar to that which it exercises over its own departments and where the concessionaire performs the major part of its activities with the authority which controls it

Operative part of the judgment

1. Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the concomitant obligation of transparency do not preclude a public authority from awarding, without calling for competition, a public service concession to an inter-municipal cooperative society of which all the members are public authorities, where those public authorities exercise over that cooperative society control similar to that exercised over their own departments and where that society carries out the essential part of its activities with those public authorities;

2. Subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, where decisions regarding the activities of an inter-municipal cooperative society owned exclusively by public authorities are taken by bodies, created under the statutes of that society, which are composed of representatives of the affiliated public authorities, the control exercised over those decisions by the public authorities may be regarded as enabling those authorities to exercise over the cooperative society control similar to that exercised over their own departments;

3. Where a public authority joins an inter-communal cooperative of which all the members are public authorities in order to transfer to that cooperative society the management of a public service, it is possible, in order for the control which those member authorities exercise over the cooperative to be regarded as similar to that which they exercise over their own departments, for it to be exercised jointly by those authorities, decisions being taken by a majority, as the case may be.

(1) OJ C 211, 8.9.2007.