Judgment of the Court (Second Chamber) of 10 November 2011 (reference for a preliminary ruling from the Augstākās tiesas Senāts — Republic of Latvia) — Norma-A SIA, Dekom SIA v Latgales plānošanas reģions, successor to the rights of Ludzas novada dome

(Case C-348/10) (1)

(Public procurement - Directive 2004/17/EC - Article 1(3)(b) - Directive 92/13/EEC - Article 2d(1)(b) - Concept of ‘service concession’ - Provision of public bus services - Right to operate the services and compensation of the service provider for losses - Risk associated with operation of the service limited by national law and the contract - Appeal procedures in the field of public contracts - Direct applicability of Article 2d(1)(b) of Directive 92/13/EEC to contracts concluded before the expiry of the time-limit for the transposition of Directive 2007/66/ECcopy keywords without brackets)

(2012/C 25/20)

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Applicants: Norma-A SIA, Dekom SIA

Defendant: Latgales plānošanas reģions, successor to the rights of Ludzas novada dome

Re:

Reference for a preliminary ruling — Augstākās tiesas Senāts — Interpretation of Article 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) and Article 2f(1)(b) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31) — Notion of service concession — Contract granting the right to provide public bus services, where the consideration consists in the right to operate the services and the contracting authority compensates the service provider for losses arising as a result of the provision of services, and national legislation and that contract limit the risk associated with operation of the service — Appeal procedures in the field of public contracts — Action for annulment of the concession contract — Direct applicability in Latvia of Article 2f(1)(b) of Directive 92/13/EEC to public contracts concluded before the deadline for transposing Directive 2007/66/EC had expired

Operative part of the judgment

1. Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as meaning that a contract by which a contracting party, pursuant to the rules of public law and the terms of the contract which govern the provision of the services in question, does not bear a significant share of the risk run by the contracting authority is to be regarded as a ‘service contract’ within the meaning of Article 1(2)(d) of that directive. It is for the national court to assess whether the transaction at issue in the main proceedings must be regarded as a service concession or a public service contract by taking account of all the characteristics of that transaction.

2. Article 2d(1)(b) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, does not apply to public contracts concluded before the expiry of the time-limit for transposition of Directive 2007/66.

(1) OJ C 246, 11.09.2010.