Case C-220/05: Reference for a preliminary ruling from the Tribunal Administratif de Lyon (France) by judgment of that court of 7 April 2005 in the case Jean Auroux and Others v Commune de Roanne — Intervener: Société d'équipement du département de la Loire
Date: 2005-08-06
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, public contract, works contract

6.8.2005

EN

Official Journal of the European Union

C 193/11

de Lyon of 7 April 2005, received at the Court Registry on 19
May 2005, for a preliminary ruling in the proceedings between
Jean Auroux and Others and Commune de Roanne — Inter-
vener: Société d'équipement du département de la Loire, on the
following questions:

1. Does a contract under which one contracting authority
engages a second contracting authority to carry out a devel-
opment project for a purpose of general interest, pursuant
to which contract that second contracting authority is to
deliver works to the first which are intended to meet its
needs, and at the end of which such of the other land and
works as have not been disposed of to third parties vest
automatically in the first contracting authority, constitute a
public works contract within the meaning of Article 1 of
Directive 93/37/EEC of 14 June 1993, (1) as amended?

2. If the answer to question 1 is in the affirmative, is it neces-
sary,
in assessing the threshold of 500 000 000 special
drawing rights imposed by Article 6 of the same directive,
to take into account only the price paid in return for the
delivery of the works to the contracting authority, or the
sum of that price and the contributions paid, even if the
latter are only partly allocated to the execution of those
works, or the total value of the works, with assets not
disposed of at the end of the contract vesting automatically
in the first contracting authority and the latter
then
pursuing the execution of ongoing contracts and assuming
the debts incurred by the second contracting authority?

3. If the answer to both questions 1 and 2 is in the affirmative,
can the first contracting authority, when entering into such
a contract, dispense with the procedures for awarding
public works contracts laid down in that directive, on the
grounds that that contract can be awarded only to certain
legal persons and that
those same procedures will be
applied by the second contracting authority when awarding
its public works contracts?

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ
1993 L 199, p. 54).

Must Articles 10 to 13 of Commission Regulation (EEC) No
1984/83 (1) of 22 June 1983 on the application of Article
85(3) of the Treaty [now Article 81 EC] to categories of exclu-
sive purchasing agreements be construed as meaning that they
include within their scope contracts for the exclusive distribu-
tion of motor-vehicle and other fuels which are nominally clas-
sified as commission or agency contracts and which contain
the following clauses?

(A) The service-station proprietor undertakes to sell the suppli-
er's motor-vehicle and other fuels in accordance with the
retail prices, conditions, and sales and business methods
stipulated by the supplier.

(B) The service-station proprietor assumes the risk associated
with the products as soon as he receives them from the
supplier in the storage tanks at the service station.

(C) Once he has received the products, the proprietor assumes
the obligation to keep the products in the conditions
necessary to ensure that they undergo no loss or deteriora-
tion and is liable, where applicable, both to the supplier
and to third parties for any loss, contamination or adultera-
tion which may affect the products and for any damage
arising as a result thereof.

(D) The service-station proprietor

required to pay the
supplier the cost of the motor-vehicle and other fuels nine
(9) days after the date of their delivery to the service
station.

is

(1) OJ L 173 of 30.6.1983 ; EE 08/02, p. 114.

Reference for a preliminary ruling from the Tribunal
Administratif de Lyon (France) by judgment of that court
of 7 April 2005 in the case Jean Auroux and Others v
Commune de Roanne — Intervener: Société d'équipement
du département de la Loire

(Case C-220/05)

(2005/C 193/19)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Tribunal Administratif