Judgment of the Court (Sixth Chamber) of 7 December 2000 in Case C-324/98 (reference for a preliminary ruling from the Bundesvergabeamt): Telaustria Verlags GmbH, Telefonadress GmbH v Telekom Austria AG, formerly Post & Telekom Austria AG (Public service contracts — Directive 92/50/EEC — Public service contracts in the telecommunications sector — Directive 93/38/EEC — Public service concession)
Date: 2001-03-24
Institutions: Court of Justice
Subjects: award of contract, contract, interpretation of the law, provision of services, public contract, services contract

24.3.2001

EN

Official Journal of the European Communities

C 95/3

1. Declares that, by failing to bring into force within the prescribed
period the laws,
regulations and administrative measures
necessary to comply with Article 5 of Directive 97/33/EC of
the European Parliament and of the Council of 30 June 1997
on interconnection in Telecommunications with regard to
ensuring universal service and interoperability through appli-
cation of the principles of Open Network Provision (ONP), in
conjunction with Annexes I and III thereto, the Kingdom of
Belgium has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of Belgium to pay the costs.

(1) JO C 6 of 8.1.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 7 December 2000

in Case C-324/98 (reference for a preliminary ruling
from the Bundesvergabeamt): Telaustria Verlags GmbH,
Telefonadress GmbH v Telekom Austria AG, formerly
Post & Telekom Austria AG (1)

(Public service contracts — Directive 92/50/EEC — Public
service contracts in the telecommunications sector — Direc-
tive 93/38/EEC — Public service concession)

(2001/C 95/04)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-324/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Bundesverga-
beamt (Federal Procurement Office), Austria, for a preliminary
ruling in the proceedings pending before that court between
Telaustria Verlags GmbH, Telefonadress GmbH and Telekom
Austria AG, formerly Post & Telekom Austria AG,
joined
party; Herold Business Data AG — on the interpretation 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) and of Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport

and telecommunications sectors (OJ 1993 L 199, p. 84) — the
Court (Sixth Chamber), composed of: V. Skouris (Rapporteur),
President of the Second Chamber, acting as President of
the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges;
N. Fennelly, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 7 December 2000, in
which it has ruled:

1. — Council Directive 93/38/EEC of 14 June 1993 coordin-
ating the procurement procedures of entities operating in
transport and telecommunications
the water, energy,
sectors covers a contract for pecuniary interest concluded
in writing between, on the one hand, an undertaking
which is specifically responsible under the legislation of a
Member State for operating a telecommunications service
and whose capital is wholly held by the public authorities
of that State and, on the other, a private undertaking,
where under that contract the first undertaking entrusts
the second with the production and publication, for the
purpose of distribution to the public, of printed and
electronically accessible lists of telephone subscribers (tele-
phone directories);

— although it is covered by Directive 93/38, such a contract
is excluded, under Community law as it stands at present,
from the scope of that directive by reason of the fact, in
particular, that the consideration provided by the first
undertaking to the second consists in the second obtaining
the right to exploit for payment its own service.

2. Notwithstanding the fact that, as Community law stands at
present, such contracts are excluded from the scope of Directive
93/38, the contracting entities concluding them are, none the
less, bound to comply with the fundamental rules of the Treaty,
in general, and the principle of non-discrimination on the
ground of nationality, in particular, that principle implying, in
particular, an obligation of transparency in order to enable the
contracting authority to satisfy itself that the principle has been
complied with.

3.

4.

That obligation of
transparency which is imposed on the
contracting authority consists in ensuring, for the benefit of any
potential tenderer, a degree of advertising sufficient to enable
the services market to be opened up to competition and the
impartiality of procurement procedures to be reviewed.

It is for the national court to rule on the question whether that
obligation was complied with in the case in the main proceedings
and also to assess the materiality of the evidence produced to
that effect.

(1) OJ C 327 of 24.10.1998.