EN Official Journal of the European Union C 209/8

Judgment of the Court (Third Chamber) of 19 June 2008 (reference for a preliminary ruling from the Bundesvergabeamt, Austria) — pressetext Nachrichtenagentur GmbH v Republik Österreich (Bund), APA-OTS Originaltext — Service GmbH, APA Austria Presse Agentur registrierte Genossenschaft mit beschränkter Haftung

(Case C-454/06) (1)

(Public procurement - Directive 92/50/EEC - Procedures for the award of public service contracts - Concept of ‘award of a contract’)

(2008/C 209/10)

Language of the case: German

Referring court

Bundesvergabeamt, Austria

Parties to the main proceedings

Applicant: pressetext Nachrichtenagentur GmbH

Defendants: Republik Österreich (Bund), APA-OTS Originaltext — Service GmbH, APA Austria Presse Agentur registrierte Genossenschaft mit beschränkter Haftung

Re:

Reference for a preliminary ruling — Bundesvergabeamt — Interpretation of Article 82 EC, of Article 3(1), Articles 8 and 9 and Article 11(3)(b) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), of Article 1(3) and Article 2(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) and of general principles of Community law — Contract for services of indefinite duration concluded on behalf of the State with a press agency, regarded as the sole national press agency, outside the procedures for awarding public contracts — Transfer, with the consent of the contracting authority, of performance of various parts of the contract to a company entirely controlled by the service provider, and other contract amendments concerning waiver of the right to termination of the contract by contracting authority, payment for the services provided and the rebate granted to the contracting authority — Whether those subsequent amendments are to be classified as a new ‘contract award’ necessitating prior publication of a contract notice

Operative part of the judgment

1. The terms ‘awarding’ and ‘awarded’, used in Articles 3(1), 8 and 9 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, must be interpreted as not covering a situation, such as that in the main proceedings, where services supplied to the contracting authority by the initial service provider are transferred to another service provider established as a limited liability company, the sole shareholder of which is the initial service provider, controlling the new service provider and giving it instructions, provided that the initial service provider continues to assume responsibility for compliance with the contractual obligations.

2. The terms ‘awarding’ and ‘awarded’, used in Articles 3(1) and 8 and 9 of Directive 92/50, must be interpreted as not covering an adjustment of the initial agreement to accommodate changed external circumstances, such as the conversion to euros of prices initially expressed in national currency, the minimal reduction in the prices in order to round them off, and the reference to a new price index where provision was made in the initial agreement to replace the price index fixed previously.

3. The terms ‘awarding’ and ‘awarded’, used Articles 3(1), 8 and 9 of Directive 92/50, must be interpreted as not covering a situation such as that at issue in the main proceedings, where a contracting authority, through the use of a supplemental agreement, agrees with the contractor, during the period of validity of a contract concluded with it for an indefinite period, to renew for a period of three years a waiver of the right to terminate the contract by notice, the waiver no longer being in force at the time of the amendment, and agrees with it to lay down higher rebates than those initially provided for in respect of certain volume-related prices within a specified area of supply.

(1) OJ C 326, 30.12.2006.