CELEX: C2001/095/04
Language: en
Date: 2001-03-24 00:00:00
Title: 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)

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    and telecommunications sectors (OJ 1993 L 199, p. 84) — the
      period the laws, regulations and administrative measures               Court (Sixth Chamber), composed of: V. Skouris (Rapporteur),
      necessary to comply with Article 5 of Directive 97/33/EC of            President of the Second Chamber, acting as President of
      the European Parliament and of the Council of 30 June 1997             the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges;
      on interconnection in Telecommunications with regard to                N. Fennelly, Advocate General; L. Hewlett, Administrator, for
      ensuring universal service and interoperability through appli-         the Registrar, has given a judgment on 7 December 2000, in
      cation of the principles of Open Network Provision (ONP), in           which it has ruled:
      conjunction with Annexes I and III thereto, the Kingdom of
      Belgium has failed to fulfil its obligations under that directive;
                                                                             1.   —      Council Directive 93/38/EEC of 14 June 1993 coordin-
                                                                                         ating the procurement procedures of entities operating in
2.    Orders the Kingdom of Belgium to pay the costs.
                                                                                         the water, energy, transport and telecommunications
                                                                                         sectors covers a contract for pecuniary interest concluded
                                                                                         in writing between, on the one hand, an undertaking
(1) JO C 6 of 8.1.2000.                                                                  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);
                 JUDGMENT OF THE COURT
                                                                                  —      although it is covered by Directive 93/38, such a contract
                                                                                         is excluded, under Community law as it stands at present,
                          (Sixth Chamber)                                                from the scope of that directive by reason of the fact, in
                                                                                         particular, that the consideration provided by the first
                       of 7 December 2000                                                undertaking to the second consists in the second obtaining
                                                                                         the right to exploit for payment its own service.
in Case C-324/98 (reference for a preliminary ruling
from the Bundesvergabeamt): Telaustria Verlags GmbH,                         2.   Notwithstanding the fact that, as Community law stands at
Telefonadress GmbH v Telekom Austria AG, formerly                                 present, such contracts are excluded from the scope of Directive
                 Post & Telekom Austria AG (1)                                    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
(Public service contracts — Directive 92/50/EEC — Public
                                                                                  ground of nationality, in particular, that principle implying, in
service contracts in the telecommunications sector — Direc-
                                                                                  particular, an obligation of transparency in order to enable the
          tive 93/38/EEC — Public service concession)
                                                                                  contracting authority to satisfy itself that the principle has been
                                                                                  complied with.
                           (2001/C 95/04)
                                                                             3.   That obligation of transparency which is imposed on the
                                                                                  contracting authority consists in ensuring, for the benefit of any
                   (Language of the case: German)                                 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.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             4.   It is for the national court to rule on the question whether that
                                                                                  obligation was complied with in the case in the main proceedings
In Case C-324/98: reference to the Court under Article 177 of                     and also to assess the materiality of the evidence produced to
the EC Treaty (now Article 234 EC) from the Bundesverga-                          that effect.
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                    (1) OJ C 327 of 24.10.1998.
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