Case C-357/06: Judgment of the Court (Fourth Chamber) of 18 December 2007 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia, Italy) — Frigerio Luigi & C. Snc v Comune di Triuggio (Directive 92/50/EEC — Public service contracts — National legislation restricting the award of local public services of economic interest to companies with share capital — Compatibility)
Date: 2007-12-18
Institutions: Court of Justice
Subjects: EU law - national law, award of contract, interpretation of the law, waste management, works contract

23.2.2008

EN

Official Journal of the European Union

C 51/19

Judgment of the Court (Fourth Chamber) of 13 Decem-
ber 2007 (reference for a preliminary ruling from the
Oberlandesgericht Düsseldorf — Germany) — Bayerischer
Rundfunk,
Rundfunk, Deutschlandradio, Hessischer
Mitteldeutscher Rundfunk, Norddeutscher Rundfunk,
Radio
Berlin-Brandenburg,
Rundfunk
Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher
Fernsehen v GEWA
Rundfunk, Zweites Deutsches

Bremen,

Gesellschaft für Gebäudereinigung und Wartung mbH

(Case C-337/06) (1)

(Directives 92/50/EEC and 2004/18/EC — Public service
contracts — Public broadcasting bodies — Contracting autho-
rities — Bodies governed by public law — Condition that the
activity of the institution be ‘financed, for the most part, by
the State’)

(2008/C 51/30)

Language of the case: German

Operative part of the judgment

1) The first condition of the third indent of the second subparagraph
of Article 1(b) 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 meaning that there is finan-
cing, for the most part, by the State when the activities of public
broadcasting bodies such as those in the main proceedings are
financed for the most part by a fee payable by persons who possess
a receiver, which is imposed, calculated and levied according to rules
such as those in the main proceedings;

2) The first condition of the third indent of the second subparagraph
of Article 1(b) of Directive 92/50 must be interpreted as meaning
that, that,
if the activities of public broadcasting bodies such as
those in the main proceedings are financed according to the proce-
dures set out when examining the first question, the condition of
‘financing … by the State’ does not require that there be direct
interference by the State or by other public authorities in the
awarding, by such bodies, of a contract such as that at issue in the
main proceedings;

3) Article 1(a)(iv) of Directive 92/50 must be interpreted as meaning
specified in that provision are

that only the public
excluded from the scope of that directive.

contracts

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

(1) OJ C 281, 18.11.2006.

Applicants: Bayerischer Rundfunk, Deutschlandradio, Hessischer
Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk,
Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer
Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites
Deutsches Fernsehen

Judgment of the Court (Fourth Chamber) of 18 December
2007 (reference for a preliminary ruling from the Tribunale
Italy) —
amministrativo regionale per

la Lombardia,

Frigerio Luigi & C. Snc v Comune di Triuggio

Defendant: GEWA Gesellschaft
Wartung mbH

für Gebäudereinigung und

Intervener in support of the defendant: Heinz W. Warnecke

Re:

for

Reference
a preliminary ruling — Oberlandesgericht
Düsseldorf — Interpretation of indent (c) of the second sub-
paragraph of Article 1(9) and Article 16(b) of Directive
2004/18/EC of the European Parliament and of the Council of
31 March 2004 on the coordination of procedures for the
award of public works contracts, public supply contracts and
public service contracts (OJ L 134 of 30.4.2004, p. 114) —
Award of cleaning services by an association of broadcasting
bodies indirectly financed by the State without compliance with
formal European procurement procedure — Concept of
‘contracting authority’.

(Case C-357/06) (1)

(Directive 92/50/EEC — Public service contracts — National
legislation restricting the award of local public services of
capital —
economic

to companies with share

interest

Compatibility)

(2008/C 51/31)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia (Italy)

C 51/20

EN

Official Journal of the European Union

23.2.2008

Parties to the main proceedings

Applicant: Frigerio Luigi & C. Snc

Defendant: Comune di Triuggio

Intervening party: Azienda Servizi Multisettoriali Lombarda — A.
S.M.L. SpA

Re:

Preliminary ruling — Tribunale amministrativo regionale per la
Lombardia — Interpretation of Arts 39, 43, 48 and 81 EC,
Article 26(2) 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), Article 4(1) of
Directive 2004/18/EC of the European Parliament and of the
Council of 31 March 2004 on the coordination of procedures
for the award of public works contracts, public supply contracts
and public service contracts
(OJ 2004 L 134, p. 114),
Article 9(1) of Council Directive 75/442/EEC of 15 July 1975
on waste (OJ 1975 L 194, p. 39) and Article 7(1) of Directive
2006/12/EC of the European Parliament and of the Council of
5 April 2006 on waste (OJ 2006 L 114, p. 9) — Procedure for
the award of public service contracts — Environmental hygiene
service — Domestic legislation authorising joint stock compa-
nies alone to hold contracts for waste management and disposal
services

Operative part of the judgment

Article 26(1) and (2) of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award of public
service contracts, as amended by Commission Directive 2001/78/EC
of 13 September 2001, precludes national provisions, such as those at
issue in the main proceedings, which exclude candidates or tenderers
entitled under the law of the Member State concerned to provide the
service in question, including those composed of groups of service provi-
ders, from submitting a tender, in a procedure for the award of a public
service contract with a value greater than the threshold for application
of Directive 92/50, solely on the ground that those candidates or
tenderers do not have a legal form corresponding to a specific category
of legal persons, namely that of a company with share capital. It is for
the national court, to the full extent of its discretion under national
law, to interpret and apply national law in accordance with the require-
ments of Community law and, in so far as such an interpretation is
not possible,
law which is
to disapply any provision of national
contrary to those requirements.

Judgment of the Court (First Chamber) of 18 December
2007 (reference for a preliminary ruling from the Tribunal
administratif de Lyon — France) — Cedilac SA v Ministère
de l'Économie, des Finances et de l'Industrie

(Case C-368/06) (1)

(Sixth VAT Directive — Right to deduct — Principles of
immediate deduction and fiscal neutrality — Carry forward of
the excess VAT to the
refund —
One-month delay rule — Transitional provisions — Retention
of the exemption)

following period or

(2008/C 51/32)

Language of the case: French

Referring court

Tribunal administratif de Lyon

Parties to the main proceedings

Applicant: Cedilac SA

Defendant: Ministère de l'Économie, des Finances et de l'Industrie

Re:

Reference for a preliminary ruling — Tribunal administratif de
Lyon — Interpretation of Articles 17 and 18(4) of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1) — Conditions for the exercise of
the right to deduct VAT charged on the price of a taxable trans-
action when the amount of authorised transactions exceeds the
amount of tax due for a given tax period — Excess carried
forward to the next period or refunded

Operative part of the judgment

Articles 17 and 18(4) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
interpreted as not
tax: uniform basis of assessment, are to be
transitional measures
precluding national measures
provided for by Law No 93-859 of 22 June 1993, the amending
Finance Law for 1993, which are designed to accompany the abolition
of a national derogating provision authorised by Article 28(3)(d) of
the same directive, in so far as the national court verifies that, in its
application to the specific case before it, those measures reduce the
effects of the national derogating provision.

such as

the

(1) OJ C 281, 18.11.2006.

(1) OJ C 281, 18.11.2006.