EN Official Journal of the European Union C 134/7

Judgment of the Court (Third Chamber) of 25 March 2010 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben

(Case C-451/08) (1)

(Procedures for the award of public works contracts - Public works contracts - Concept - Sale by a public body of land on which the purchaser intends subsequently to carry out works - Works corresponding to a municipal authority’s urban-planning objectives)

2010/C 134/10

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Helmut Müller GmbH

Defendant: Bundesanstalt für Immobilienaufgaben

Intervening parties: Gut Spascher Sand Immobilien GmbH, Municipality of Wildeshausen

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Article 1(2)(b) and (3) of European Parliament and Council Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Concepts of ‘public works contract’ and ‘public works concession’ — Obligation to put out to tender the sale of land by a third party in circumstances where the acquirer subsequently has to carry out on that land works corresponding to town planning objectives defined by a local authority and a draft of which has been approved by that authority since before the conclusion of the sale contract.

Operative part of the judgment

1. The concept of ‘public works contracts’, within the meaning of Article 1(2)(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, does not require that the works which are the subject of the contract be materially or physically carried out for the contracting authority, provided that they are carried out for that authority’s immediate economic benefit. The latter condition is not satisfied by the exercise by that contracting authority of regulatory urban-planning powers.

2. The concept of ‘public works contracts’, within the meaning of Article 1(2)(b) of Directive 2004/18, requires that the contractor assume a direct or indirect obligation to carry out the works which are the subject of the contract and that that obligation be legally enforceable in accordance with the procedural rules laid down by national law.

3. The ‘requirements specified by the contracting authority’, within the meaning of the third variant set out in Article 1(2)(b) of Directive 2004/18, cannot consist in the mere fact that a public authority examines certain building plans submitted to it or takes a decision in the exercise of its regulatory urban-planning powers.

4. In circumstances such as those of the case in the main proceedings, there is no public works concession within the meaning of Article 1(3) of Directive 2004/18.

5. In circumstances such as those of the case in the main proceedings, the provisions of Directive 2004/18 do not apply to a situation in which one public authority sells land to an undertaking, even though another public authority intends to award a works contract in respect of that land but has not yet formally decided to award that contract.

(1) OJ C 6, 10.1.2009.