Judgment of the Court (Second Chamber) of 16 June 2005 in Joined Cases C-462/03 and C-463/03: Reference for a preliminary ruling from the Bundesvergabeamt Strabag AG, Kostmann GmbH v Österreichische Bundesbahnen (Public procurement contracts — Directive 93/38/EEC — Water, energy, transport and telecommunications sectors — Concepts of ‘operation’ and ‘provision’ of networks providing a service to the public in the field of transport by railway — Railway infrastructure works)
Date: 2005-08-06
Institutions: Court of Justice
Subjects: Austria, interpretation of the law, public service, rail transport, transport network

C 193/6

EN

Official Journal of the European Union

6.8.2005

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

(Fourth Chamber)

of 16 June 2005

of 16 June 2005

in Joined Cases C-462/03 and C-463/03: Reference for a
preliminary ruling from the Bundesvergabeamt Strabag
AG, Kostmann GmbH v Österreichische Bundesbahnen (1)

in Case C-104/04: Commission of the European Commu-
nities v French Republic (1)

(Public procurement contracts — Directive 93/38/EEC —
Water, energy, transport and telecommunications sectors —
Concepts of ‘operation’ and ‘provision’ of networks providing
a service to the public in the field of transport by railway —
Railway infrastructure works)

(Failure of a Member State to fulfil obligations — Directive
97/13/EC — Telecommunication services — Contribution to
research and development)

(2005/C 193/09)

(2005/C 193/08)

(Language of the case: French)

(Language of the case: German)

In Joined Cases C-462/03 and C-463/03: reference for a preli-
minary ruling under Article 234 EC from the Bundesverga-
beamt
(Austria), made by decision of 27 October 2003,
received at the Court on 4 November 2003, in the proceedings
pending before that court between Strabag AG (C-462/03),
Kostmann GmbH (C-463/03) and Österreichische Bundes-
bahnen — the Court (Second Chamber) composed of C.W.A.
Timmermans (Rapporteur), President of the Chamber, R. Silva
de Lapuerta, R. Schintgen, G. Arestis and J. Klučka, Judges; P.
Léger, Advocate General, R. Grass, Registrar, has given a judg-
ment on 16 June 2005, the operative part of which is as
follows:

Where a contracting entity exercising one of the activities particularly
mentioned in Article 2(2) of Council Directive 93/38/EEC of 14
June 1993 coordinating the procurement procedures of entities oper-
ating in the water, energy, transport and telecommunications sectors
contemplates, in the exercise of that activity, the award of a supply,
works or service contract or the organisation of a design contest, that
contract or contest is governed by the provisions of this directive.

(1) OJ C 21 of 24.1.2004.

In Case C-104/04 Commission of the European Commu-
J.-F. Pasquier and M. Shotter) v French
nities (Agents:
Republic (Agents: G. de Bergues and S. Ramet) — action
under Article 226 EC for failure to fulfil obligations, brought
on 27 February 2004 — the Court
(Fourth Chamber),
composed of K. Lenaerts, President of the Chamber, K. Schie-
mann and E. Levits (Rapporteur), Judges; L.A. Geelhoed, Advo-
cate General; R. Grass, Registrar, gave a judgment on 16 June
2005, in which it:

1. Declares that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Articles 3(2)
and 8(1) of Directive 97/13/EC of the European Parliament and
of the Council of 10 April 1997 on a common framework for
general authorisations and individual licences in the field of tele-
communications services, read in conjunction with the annex to
that directive, the French Republic has failed to fulfil its obliga-
tions under that directive;

2. Orders the French Republic to pay the costs.

(1) OJ C 94, 17.04.2004.