Keywords

Subject of the case

Operative part



Keywords

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public procurement — Concept — Contract for pecuniary interest — Included — Conditions (European Parliament and Council Directive 2004/18, Art. 1(2) and Annex II A) (see paras 34-39)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — National legislation authorising the conclusion, without an invitation to tender, of a contract establishing cooperation between public entities — Conditions under which permissible — Contract concluded between two public entities, one a university — Situation where the contracting party of that university exercises no control over the latter which is comparable to that exercised over its own services (European Parliament and Council Directive 2004/18) (see paras 41, 42)

3. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — National legislation authorising the conclusion, without an invitation to tender, of a contract establishing cooperation between public entities — Conditions under which permissible — Contract ensuring that a public task that those entities all have to perform is carried out, being solely in the public interest and not placing a private provider of services in a position of advantage vis-à-vis his competitors — A matter for the national court to ascertain — Contract arising in an extraordinary situation — Situation which may be taken into consideration only in accordance with the conditions laid down in Article 31(1)(c) of Directive 2004/18 — Burden of proof on the contracting authority (European Parliament and Council Directive 2004/18) (see paras 43-55, operative part)

Subject of the case

Re:

Request for a preliminary ruling — Tribunale Amministrativo Regionale per l’Abruzzo — Interpretation of Article 1(2)(a) and (d), Articles 2 and 28 of, and Annex II, categories 8 and 12 to, 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 (OJ 2004 L 134, p. 114) — Award of the contract outside of the procedures for the award of contracts laid down by the directive — Contract concluded between two public administrations, under which the service provider is a university and the consideration provided is not clearly of a remunerative nature — Supply of services consisting of the carrying out of studies, analyses and planning for the reconstruction of the historic centre of two municipalities destroyed by an earthquake — Methods of award of the contract justified by specific public interests connected with the earthquake.

Operative part

Operative part:

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, as amended by Commission Regulation (EC) No 1177/2009 of 30 November 2009, precludes national legislation which authorises the conclusion, without recourse to competition, of a contract by which public entities institute cooperation between themselves where — which it is for the referring court to ascertain — such a contract is not intended to ensure the implementation of a public service task common to those entities, where it is not exclusively governed by considerations and requirements proper to the pursuit of objectives of public interest or where it is such as to place a private service provider in a privileged position compared with its competitors. The fact that such a contract arises in an extraordinary situation can be taken into consideration only in so far as the contracting authority ascertains that the conditions for application of Article 31(1)(c) of that directive are met.