CELEX: 62003CC0458
Language: en
Date: 2005-03-01
Title: Opinion of Advocate General Kokott delivered on 1 March 2005.#Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG.#Reference for a preliminary ruling: Verwaltungsgericht, Autonome Sektion für die Provinz Bozen - Italy.#Public procurement - Procedures for the award of public contracts -Service concession - Management of public pay car parks.#Case C-458/03.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 1 March 2005 (1)
      
      Case C-458/03
      Parking Brixen GmbH
      (Reference for a preliminary ruling from the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, Italy)
      (Public procurement – Directive 92/50/EEC – Distinction between public service contracts and concession contracts – Distinction between awards to third parties and ‘in-house operations’ – Management of a pay car park by a subsidiary of the contracting authority)I –  Introduction
      1.     One of the key questions in public procurement law is the distinction between award transactions which are subject to a compulsory
         call for tenders and those which are not. Particularly topical in this connection is the differentiation between the award
         of contracts to third parties and internal procurement operations, also referred to as ‘in-house operations’. 
      
      2.     In-house operations stricto sensu  are transactions in which a body governed by public law awards a contract to one of its departments which does not have its
         own legal personality. Largo sensu, however, in-house operations may also include certain situations in which contracting authorities conclude contracts with
         companies controlled by them which do have their own legal personality. Whereas in-house operations stricto sensu are by definition irrelevant for the purposes of procurement law, since they involve transactions wholly internal to the
         administration, (2) in-house operations largo sensu (sometimes called ‘quasi-in-house operations’ (3)) frequently raise the difficult question whether or not there is a requirement to put them out to tender. That is the issue
         with which the Court is concerned once again (4) in this case. 
      
      3.     The Municipality of Brixen awarded the management of two public pay car parks to its subsidiary Stadtwerke Brixen AG without
         first carrying out an award procedure. The private company Parking Brixen GmbH challenged that award. An Italian court, the
         Verwaltungsgericht, Autonome Sektion für die Provinz Bozen (Administrative Court, Autonomous Division for the Province of
         Bolzano) (hereinafter also called ‘the referring court’), has referred to the Court for a preliminary ruling two questions
         which relate essentially to the distinction between public service concessions and public service contracts, and the distinction
         between external awards subject to a compulsory call for tenders and in-house operations not subject to a compulsory call
         for tenders. 
      
      II –  Relevant legislation 
      A –    Community law 
      4.     The Community legislation relevant to this case comprises Council Directive 92/50/EEC of 18 June 1992 relating to the coordination
         of procedures for the award of public service contracts (5) (hereinafter ‘Directive 92/50’) and Articles 43 EC, 49 EC and 86(1) EC. 
      
      5.     Article 1(a) and (b) of Directive 92/50 reads as follows: 
      ‘For the purposes of this Directive: 
      (a)      ‘public service contracts’ shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority,
         ...; 
      
      (b)      ‘contracting authorities’ shall mean the State, regional or local authorities, bodies governed by public law, associations formed by one or more of
         such authorities or bodies governed by public law; 
      
      ...’. 
      6.     Article 43 EC establishes the freedom of establishment and Article 49 EC the freedom to provide services. Under the first
         paragraph of Article 48 EC and Article 55 EC, companies or firms formed in accordance with the law of a Member State and having
         their registered office, central administration or principal place of business within the Community are, for the purposes
         of those freedoms, to be treated in the same way as natural persons who are nationals of Member States. 
      
      7.     Finally, Article 86(1) and (2) EC provides as follows: 
      ‘1.       In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States
         shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those
         rules provided for in Article 12 and Articles 81 to 89. 
      
      2.      Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing
         monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the
         application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
         The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.’ 
      
      B –    National law 
      8.     In Italy, Article 115(1) of Decreto Legislativo (6) No 267 of the President of the Republic of 18 August 2000 (hereinafter, ‘Decree-Law 267/2000’) (7) allows municipalities and other local authorities to convert their dedicated undertakings (also known as ‘special undertakings’),
         by means of a unilateral legal transaction, into public limited companies. In those circumstances, the companies in question
         retain the rights and obligations obtaining prior to the conversion and take over the assets and liabilities of the original
         special undertakings. Under that provision, the local authority concerned may continue to be the sole shareholder in such
         a company, albeit for no more than two years following the conversion. 
      
      9.     Article 88(6) of the consolidated text of the provisions concerning local government of the Autonomous Region of Trentino-South
         Tyrol (hereinafter, ‘the provisions concerning local government’) provides: 
      
      ‘Municipalities shall by regulations establish the procedures and selection criteria for the forms of organisation set forth
         hereunder for the management of public services of economic and commercial importance: 
      
      (a)      Formation of special undertakings; 
      (b)      Formation of, or participation in, public or private limited companies, under predominantly public local influence; 
      (c)      Entrusting the management of public services to third parties, in which case suitable procedures for their being put out to
         competition must be laid down. ...’. (8)      
      
      10.   Also, Article 88(18) of the provisions concerning local government provides that local authorities with holdings in companies
         formed under Article 6 may – subject to certain conditions defined in greater detail in paragraph 18 – entrust such companies
         with the management of other public services which are compatible with the objectives of the company. 
      
      III –  Facts 
      Facts and main proceedings
      11.   In 2001 and 2002, the Municipality of Brixen, situated in the Italian Autonomous Region of Trentino-South Tyrol, transferred
         the management of two public car parks to Stadtwerke Brixen AG, in each case without a prior award procedure. Both car parks
         belong to the municipal public swimming baths, the construction and management of which had already been transferred to Stadtwerke
         Brixen in 2000. As became clear at the hearing, however, those car parks are not used exclusively by patrons of the swimming
         baths. 
      
      12.   According to the information supplied by the referring court, those car parks are situated on two different plots of land
         bearing numbers 491/6 and 491/11. 
      
      13.   With respect to plot 491/11, in December 2001, the municipality granted (9) Stadtwerke Brixen AG an overground and underground building right for the construction of a car park. Pending completion
         of the planned underground car park, provision was made for a temporary overground car park. To that end, the land in question
         (which had previously been a football field) was temporarily surfaced and converted into a car park with approximately 200
         spaces. 
      
      14.   In order to provide additional parking, management of the neighbouring overground car park on plot 491/6 was also transferred
         to Stadtwerke Brixen AG in November 2002 for a period of nine months. (10) That car park, which likewise comprised some 200 spaces, had previously been administered directly by the Municipality of
         Brixen for 10 years. 
      
      15.   Under an agreement concluded with the Municipality of Brixen on 19 December 2002, Stadtwerke Brixen AG is permitted to charge
         patrons a fee for using the latter car park, situated on plot 491/6. In return, it undertook to pay the municipality annual
         compensation in the amount of EUR 151 700, which is to increase proportionately if the parking fee is raised. (11) In addition, Stadtwerke Brixen AG continued to employ the car park operating staff formerly employed by the Municipality
         of Brixen, undertook to ensure the routine and non-routine upkeep of the site and assumed full liability in this regard. Stadtwerke
         Brixen AG also stated that it was willing to carry on the cycle hire service which the Municipality of Brixen had previously
         operated from the car park and to allow the weekly market to continue to be held there. 
      
      16.   According to the information supplied by the referring court, no such agreement was concluded, however, with respect to use
         of the overground car park on plot 491/11. 
      
      17.   The award of the car park management contract to Stadtwerke Brixen AG is challenged by Parking Brixen GmbH, which already
         operates a multi-storey car park at another location in Brixen and is itself interested in managing the two car parks at issue
         here. On 17 January 2003, it brought a ‘Rekurs’ (appeal) before the referring court and seeks the annulment of the legal transactions
         by which the award was effected. 
      
      Additional information on Stadtwerke Brixen AG and the former dedicated undertaking
      18.   Stadtwerke Brixen AG is the legal successor to Stadtwerke Brixen, formerly a dedicated undertaking (also called a ‘special
         undertaking’) of the Municipality of Brixen. As a dedicated undertaking, it had had legal personality and commercial independence
         since 1 January 1999 and was converted by the municipality into a public limited company, Stadtwerke Brixen AG, under Article
         115 of Legislative Decree 267/2000 in October 2001. (12)
      
      19.   The tasks of Stadtwerke Brixen AG are set out in Article 4 of its statutes. Under that article, it is permitted to operate
         in numerous areas falling under the heading of services of general economic interest in the broadest sense of that term, in
         particular water supply and sewage disposal, heating and power supply, highway construction, refuse disposal, transport of
         passengers and goods, as well as information technology and telecommunications, in each case at local, national and international
         level. Its tasks also include the management of car parks and garages, together with the activities associated with them.
         
      
      20.   The only shareholder in Stadtwerke Brixen AG at the time of the transfer of the two car parks, and thereafter, was the Municipality
         of Brixen. Article 5(2) of the statutes of Stadtwerke Brixen AG provides that participation by the Municipality of Brixen
         in the company’s authorised share capital must not under any circumstances be less than the absolute majority of the ordinary
         share capital. 
      
      21.   Under Article 17 of its statutes, Stadtwerke Brixen AG is to be administered by an Administrative Board consisting of between
         three and six members to be appointed by the shareholders’ meeting, the Municipality of Brixen being able in any event to
         appoint the majority of the members of the Administrative Board. (13) Under Article 18 of the statutes, the Administrative Board has the power to ensure the routine administration of the company,
         although that power is subject to a number of limitations including, in some circumstances, the carrying out of legal transactions
         up to a value of no more than EUR 5 000 000 per transaction. Furthermore, Article 24 of the statutes provides for a Supervisory
         Board consisting of three ordinary members and two alternate members, of which the Municipality is to appoint at least two
         ordinary members and one alternate member. 
      
      22.   The former special undertaking Stadtwerke Brixen had tasks materially similar to those of the present Stadtwerke Brixen AG,
         although confined to the municipality’s area of responsibility and to cooperation with other undertakings in matters extending
         beyond the boundaries of the municipality. Its tasks already included the management of single- and multi-storey car parks
         but not, for example, information technology and telecommunications. Stadtwerke’s Supervisory Board was appointed by the Municipal
         Council and was subject in relation to its activities to the directives laid down by the Municipal Council. 
      
      IV –  Reference for a preliminary ruling and procedure before the Court 
      23.   By order of 23 July 2003, the referring court stayed the proceedings before it and referred two questions to the Court for
         a preliminary ruling. By those questions, the introduction to which also refers to Articles 43 et seq. EC, 49 et seq. EC and
         86 EC, it seeks to ascertain whether: 
      
      1)      the award of the management of the public pay car parks in question constitutes a public service contract within the meaning
         of Directive 92/50/EEC or a public service concession to which the competition rules of the EC, in particular the obligation
         to ensure equal treatment and transparency, must be applied; 
      
      2)      if that award does constitute a service concession relating to the management of a local public service, the award of the
         management of public pay car parks which, under Article 44(6)(b) of Regional Law No 1 of 4 January 1993, as amended by Article
         10 of Regional Law No 10 of 23 January 1998, and under Article 88(6)(a) and (b) of the provisions concerning local government,
         can be effected without a public call for tenders, is compatible with Community law, in particular with the principles of
         freedom to provide services and freedom of competition, the prohibition of discrimination, and the resultant obligations to
         ensure equal treatment, transparency and proportionality, where a company limited by shares is involved which was set up pursuant
         to Article 115 of Legislative Decree No 267/2000 by the conversion of a special undertaking of a municipality, whose share
         capital at the time of the award was held 100% by the municipality itself but whose administrative board enjoys all extensive
         powers of routine administration up to a value of EUR 5 000 000 per transaction. 
      
      24.   By letter of 16 December 2004, the Court Registry drew the attention of the interested parties to the judgment in Stadt Halle (14) due to be delivered on 11 January 2005 in order to give them an opportunity to make observations on that judgment at the
         hearing in this case on 13 January 2005. 
      
      25.   In the proceedings before the Court, written and oral observations were submitted by Parking Brixen AG, Stadtwerke Brixen
         AG, the Municipality of Brixen, the Italian Government, the Austrian Government and the Commission. The Netherlands Government
         also presented oral argument at the hearing. 
      
      V –  Legal assessment 
      26.   This reference for a preliminary ruling is aimed essentially at ascertaining what, if any, rules Community law lays down in
         respect of transactions between contracting authorities and their subsidiaries. That is the subject-matter of the referring
         court’s second question. Before looking at this, however, we must, in the context of the first question referred, consider
         where in Community law such rules, if they do exist, are to be found in the first place – in Directive 92/50 or in general
         legal principles contained in the EC Treaty. To that end, it is necessary to distinguish between public service contracts
         and service concessions. 
      
      A –    The first question: distinction between a public service contract and a service concession 
      27.   By its first question, the referring court essentially wishes to ascertain whether a situation where a contracting authority
         assigns the management of a public car park to a contractor which may charge a fee for the use of the car park and, in return,
         undertakes to pay annual compensation to the municipality constitutes a public service contract within the meaning of Directive
         92/50 or a service concession. 
      
      28.   The distinction I referred to at the outset between awards to third parties which are subject to a compulsory call for tenders
         and in-house operations (15) which are not subject to a compulsory call for tenders has no bearing at this stage on the answer to this question. It is
         sufficient for now to examine whether the mere subject-matter of a transaction such as that in this case between the Municipality of Brixen and Stadtwerke Brixen AG is capable of falling
         within the scope of Directive 92/50 in the first place. That question would have to be answered in the affirmative if the
         transaction constituted a public service contract but in the negative if it were a service concession since, according to the Court’s case-law, which was initially developed in relation to the ‘Utilities Directive’ (93/38)
         (16) and then transposed to the sphere of Directive 92/50, service concessions are not contracts for pecuniary interest concluded in writing within the meaning of those two directives, (17) not even where they relate to the spheres of activity listed in the annexes to the relevant directive. Moreover, this is
         also confirmed by a converse interpretation of the prospectively applicable Directive 2004/18, in which express reference
         is made for the first time to service concessions. (18)
      
      29.   Unlike a public service contract, a service concession is characterised by the fact that, in consideration for the service in question, the service provider obtains from the contracting
         authority the right to exploit for payment its own service. (19)
      
      30.   As the Commission, the Austrian Government and the Italian Government rightly submit, in the case of a service concession, the contractor bears the risks associated with the service and receives his consideration – at least in part – from the
         user of the service, for example through the payment of a fee. (20) There is therefore a triangular relationship between the contracting authority, the service provider and the service user.
         A public service contract, on the other hand, leads only to a bilateral legal relationship in which payment for the service provided is made by the
         contracting authority itself, which, moreover, also bears the risk connected with the procurement. 
      
      31.   In this case, according to the facts set out above, the consideration which the Municipality of Brixen grants to Stadtwerke
         Brixen AG for managing the car park on plot 491/6 consists exclusively in permitting Stadwerke Brixen AG to charge patrons
         of the car park a user fee. From an economic point of view, Stadtwerke Brixen AG is thus able to reap the benefits of the
         service which it provides, that is to say the management and maintenance of the car park. At the same time, however, it also
         bears the economic risk connected with managing the car park, since it must use the revenue from the user fees to finance
         not only the running costs but also the upkeep of the parking surfaces and the annual compensation payable to the municipality.
         All of this indicates that the transaction in question is not a service contract but a service concession. 
      
      32.   Whether the same is also true of the car park on plot 491/11 cannot be conclusively determined on the basis of the information
         available. However, application of the criteria laid down by Community law to the facts of the main proceedings is in any
         event a matter not for the Court of Justice but for the referring court. (21) That court will have to ascertain, in particular, whether the consideration which the Municipality of Brixen grants to Stadtwerke
         Brixen AG for managing the car park consists in the permission to charge patrons of the car park a user fee. 
      
      33.   In conclusion, I in any event concur with Parking Brixen GmbH, the Austrian and Italian Governments and the Commission (22) that a situation where a contracting authority assigns the management of a public car park to an undertaking which may charge
         a fee for the use of the car park and, in return, undertakes to pay annual compensation to the contracting authority does
         not constitute a public service contract within the meaning of Directive 92/50 but a service concession not falling within
         the scope of that directive. 
      
      B –    The second question: rules of Community law governing the award of service concessions to subsidiaries of contracting authorities
      34.   By its second question, the referring court essentially wishes to ascertain the conditions under which a contracting authority
         may award to one of its subsidiaries, without first conducting an award procedure, a service concession such as the authority
         to manage public pay car parks at issue in the main proceedings.
      
      1.      Prohibition of discrimination under Community law and the obligation of transparency even outside the scope of the procurement
         directives 
      
      35.   Contrary to the view taken by the Netherlands Government, it is already settled case-law that contracting authorities are
         subject, even outside the prevailing scope of the procurement directives, (23) to the requirements of Community law arising from the fundamental rules of the EC Treaty, in particular the fundamental freedoms (24) and the prohibition of discrimination contained in them. (25)
      
      36.   The prohibition of discrimination carries with it an obligation of transparency. Only if the award of a contract or a concession
         is carried out transparently can it be established at all whether, in a particular case, the principle of non-discrimination
         was observed or whether the decision to accept or reject a particular applicant was arbitrary. (26)
      
      37.   All of this does not mean of course that the procedure applied must be the same in every detail as that provided for in the
         procurement directives. However, as the Court held in the judgment in Telaustria and Telefonadress, the obligation of transparency imposed on the contracting authority means that it must:
      
      ‘for the benefit of any potential tenderer, [ensure] 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.’ (27)
      
      38.   I would mention merely in passing that, in this connection, Stadtwerke Brixen AG raises the objection that the provisions
         of Article 43 et seq. EC are not at all applicable to this case because the situation in the main proceedings has no cross-border
         connection. All the parties to the main proceedings are established in Italy. 
      
      39.   It must be pointed out in this regard that it is true that the fundamental freedoms are not in fact applicable to purely internal
         situations. (28) However, as the Commission, Parking Brixen GmbH and the Austrian Government have rightly submitted, in public procurement
         law, any failure to fulfil the obligation of transparency has an impact not only on domestic undertakings such as Parking
         Brixen GmbH but on all potential candidates, including any tenderers from other Member States. (29) Consequently, any lack of publicity always simultaneously affects the fundamental freedoms of potential candidates from other
         Member States as well. 
      
      2.      Possible exception for operations with a contracting authority’s own subsidiaries: the rule in Teckal
      40.   It remains to be considered, however, whether a contracting authority may exceptionally be exempt from the rules of Community
         law described above in cases where it commissions services from entities which it itself controls. 
      
      41.   If the intention of the contracting authority in so doing is to use an organisationally independent public undertaking, in
         particular one of its subsidiaries, the answer appears initially to be readily apparent. In accordance with the principle
         of the equal treatment of public and private undertakings, as defined in particular in Article 86(1) EC, public undertakings
         must not, subject to the exceptions contained in Article 86(2) EC, be treated any more favourably than private competitors.
         A contracting authority cannot therefore simply entrust the provision of services to an undertaking which it itself controls
         without first giving any consideration to other possible tenderers or conducting a transparent selection procedure in order
         to do so. 
      
      42.   On the other hand, the public body is of course at liberty to perform the tasks conferred on it by using exclusively its own resources, that is to say by performing them in-house, without calling on legally independent – public or private – undertakings at
         all. In those circumstances, moreover, it is not subject to the requirements of procurement law (30) or of Article 86 EC. 
      
      43.   As I said at the outset, the distinction between in-house operations and external procurement transactions not infrequently
         creates difficulties in individual cases. In its judgment in Teckal, (31) the Court – in connection with Directive 93/36 – established a precedent in this regard. It can be inferred from that judgment
         that procurement law becomes applicable, in principle, upon the conclusion of an agreement between two separate persons, (32) in other words upon the coming into being of a contract. 
      
      44.   However, the question whether or not procurement law is applicable depends not only on purely formal criteria but also on
         a process of evaluation. For, even where both parties to a legal transaction, from a formal point of view, each have their
         own legal personality, the transaction carried out between them may none the less exceptionally be treated in the same way
         as an in-house operation, in so far as two cumulative criteria developed by the Court in its case-law are fulfilled: (33)
      
      –       the contracting authority (34) must exercise over the contractor (35) a control similar to that which it exercises over its own departments (first Teckal criterion); 
      
      –       the other contractor must carry out the essential part of its activities for (36) the controlling contracting authority or authorities (second Teckal criterion).
      
      45.   The Court has since applied that rule not only to Directive 93/36 but also to Directives 92/50 and 93/37. (37) (38)
      
      46.   The Teckal criteria can also be transposed to circumstances such as those of this case, which do not fall within the scope of any of
         the public procurement directives. (39) If the procurement directives, which lay down detailed requirements relating to the procedure for awarding contracts, themselves
         permit exceptions for in-house operations, such exceptions must with all the more reason also be permissible in cases where
         the procedural requirements are less detailed to begin with, relating only to general conditions arising from the prohibition
         on discrimination and the obligation of transparency. The absurd consequence if that were not the case would be that, in circumstances
         falling outside the scope of the directives, contracting authorities would be subject to stricter requirements than in circumstances
         falling within the scope of the directives, that is to say that they would in that event have an obligation without exception to ensure transparency and publicity.
      
      47.   Moreover, it must be taken into account that the procurement directives are for their part intended only to implement the
         fundamental rules of the EC Treaty as they arise in particular from the fundamental freedoms. (40) Derogations from the directives are therefore ultimately derogations from those principles. This too supports the proposition
         that the rule in Teckal should be transposed to cases in which the prohibition on discrimination and the obligation of transparency derive directly
         from the fundamental freedoms without first having been given expression in the procurement directives.
      
      48.   Whether, however, the two Teckal criteria are capable of being fulfilled in a particular case such as this, with the result that the contracting authority
         may, as the Municipality of Brixen, Stadtwerke Brixen AG and the Italian Government claim, be exempt from the rules of Community
         law, depends on an assessment of all the circumstances of the case in question.
      
      a)      First Teckal criterion: control similar to that which it exercises over its own departments
      
      49.   In accordance with the first Teckal criterion, treatment as an in-house operation is subject to the condition that the contracting authority must exercise over
         its contractor a control similar to that which it exercises over its own departments.
      
      50.   The Commission doubts whether this can be said to be the case in relation to an undertaking such as Stadtwerke Brixen AG,
         for two reasons: first, Stadtwerke Brixen AG may in future be required by law to open up its capital to participation by third
         parties; and, secondly, its managerial bodies can for the most part run the company’s day-to-day business independently. The
         second point was also made by Parking Brixen GmbH and the Austrian Government. 
      
      i) Possibility of a control similar to that which it exercises over its own departments excluded by private participation
         
      
      51.   The starting point for an examination of this issue should be the recent judgment in Stadt Halle. In that judgment, the Court clarified the first Teckal criterion as meaning that any participation by private undertakings, even as minority shareholders, excludes the possibility
         of a control similar to that which it exercises over its own departments.(41)
      
      52.   That clarification shows that, through the criterion of a control similar to that which it exercises over its own departments, the Court has established in its case-law a more stringent standard than is customary in competition law, for example. Thus,
         the fact that the contracting authority has a majority holding in the capital of its subsidiary, the fact that it exercises
         the majority of the voting rights and the fact that it appoints the majority of the members of the subsidiary’s managerial
         bodies may – together with any agreements between the members – combine to support the conclusion as to the existence of control
         within the meaning of competition law (42) and make the subsidiary a public undertaking within the meaning of Article 86(1) EC; (43) such considerations are not sufficient, however, to support the assumption of a – more extensive – control similar to that which it exercises over its own departments.
      
      53.   The mere presence of a private third party, even if only in the form of a minority holding without rights of veto, makes it
         impossible for the contracting authority to exercise a control similar to that which it exercises over its own departments. The reason for this is that the presence of a private third party always presupposes a minimum degree of consideration on
         the part of the public body for the private party’s economic interests – for only then will a private third party make its
         know-how or financial might available to the public body in the first place. Thus, where a private third party – following
         the completion of a public call for tenders, where there has been one – acquires a holding in an undertaking, the consideration
         for the private party’s economic interests may prevent the public body from fully pursuing its public interests, however legitimate
         such consideration may be from a purely legal point of view. It is essentially this combination of public and private interests
         which distinguishes semi-public undertakings as they are known from mere departments of the administration. (44)
      
      54.   Since a public body cannot therefore control semi-public undertakings in the same way as it can its own departments, all legal
         transactions which contracting authorities enter into with their semi-public subsidiaries are subject to the rules of public
         procurement law, in particular the prohibition on discrimination and the obligation of transparency.
      
      ii) Future opening-up of the company’s capital to participation by third parties
      55.   At the time of the transfer of the two car parks, and thereafter, Stadtwerke Brixen AG was not a semi-public undertaking but a wholly-owned subsidiary of the Municipality of Brixen. However, the municipality was required,
         within a maximum of two years following the conversion of the former dedicated undertaking, to surrender its status as sole
         shareholder to that of mere majority shareholder. (45)
      
      56.   The principle of legal certainty requires that the obligation to conduct an award procedure must always be assessed ex ante, that is to say in the context of the time when the legal transaction was carried out. For, both from the point of view of
         the contracting authority and its contractor and from the point of view of competitors not taken into consideration, the question
         whether or not it was necessary to carry out an award procedure must be determinable at the time when the contract was actually
         concluded. Subsequent events can be taken into account, at most, if their occurrence was already foreseeable with certainty
         at the time of the award.
      
      57.   The loss of the municipality’s 100% holding in its subsidiary would have been foreseeable with certainty in any event if the
         acquisition of a holding in the company by a specific third party had already been imminent.
      
      58.   Taking that argument further, however, the Commission submits that, in a case such as this, the loss of the municipality’s
         100% holding was sufficiently foreseeable by virtue of the law then in force alone, and should therefore have been taken into
         consideration at the time when the car parks were transferred.
      
      59.   However, a provision of law such as Article 115 of Legislative Decree 267/2000 supports the inference only – and at most (46) – of an obligation to sell shares within a specified period. Whether and when such shares will actually be sold and transferred to a third party depends on many other circumstances about the materialisation of which the mere
         existence of such a statutory obligation says nothing at that stage. More specifically, it is by no means inconceivable that
         no candidate will be prepared to acquire a holding in the undertaking concerned on the terms offered, as is elegantly illustrated
         by the circumstances of this case in particular. According to the information supplied by the Municipality of Brixen and Stadtwerke
         Brixen AG at the hearing, no third party has to date acquired a holding in Stadtwerke Brixen AG.
      
      60.   The interests of the parties concerned are likewise not the same at that stage as they would be in a semi-public undertaking.
         For, so long as there is only an obligation to open up the capital of the subsidiary subsequently, but no particular third party has yet emerged, the contracting authority still has no reason, when awarding contracts or
         concessions to its subsidiaries, to take into consideration the interests of such a private investor.
      
      61.   The Commission voices the concern that a third party may, during the (potentially long (47)) term of a concession which has been awarded, acquire a holding in the public limited company and then, by virtue of its holding,
         share in the revenue from the concession. However, the danger associated with this possibility, that the subsequent private
         investor will be treated more favourably than other private undertakings, (48) does not have to be addressed at the time when the concession itself is awarded to the municipal subsidiary; it is sufficient
         for suitable precautions to be taken at the time when the third party is selected, that is to say before the shareholding is transferred to it. For, in the context of the participation by a private third
         party in a public undertaking, the fundamental freedoms (49) require compliance with the prohibition against discrimination and the obligation of transparency, in particular the assurance
         of an appropriate degree of publicity. (50)
      
      62.   For the foregoing reasons, the statutory obligation to open up a company’s capital to participation by third parties within
         a certain period, in itself, does not at that stage make it impossible for the contracting authority to exercise over that
         company a control similar to that which it exercises over its own departments.
      
      iii) Power of the managerial bodies of a public limited company to run the day-to-day business independently
      63.   On the other hand, doubts as to the existence of a control similar to that which a contracting authority exercises over its
         own departments may, irrespective of the shareholdings, follow generally from the fact that an undertaking such as Stadtwerke
         Brixen AG is a public limited company the managerial bodies of which are to a large extent permitted to run the day-to-day
         business independently. (51) These doubts have been expressed not only by Parking Brixen GmbH, the Austrian Government and the Commission, but also by
         the referring court.
      
      64.   In this connection, a distinction should be drawn between the public undertaking’s external relations with other market operators
         and its internal relations with the municipality.
      
      65.   The fact that the managerial bodies of a public undertaking have extensive powers in their external relations still does not by any means make it impossible for the municipality to exercise over that undertaking a control similar to
         that which it exercises over its own departments. In fact, such powers in external relations are usually necessary in order
         to guarantee the undertaking’s ability to pursue its activities, to ensure the smooth running of the day-to-day business and,
         not least, to protect the interests of third parties. (52) Even in the public sector itself, it is by no means unusual for individual officials, such as the mayor of a municipality,
         the head (‘Landrat’) of a district authority or the heads of national authorities, to have relatively far-reaching powers
         to represent the organisation in question externally.
      
      66.   Of greater significance for the question of control at issue here, therefore, are the internal relations  between a municipality and an undertaking such as Stadtwerke Brixen AG. In this regard, the referring court expresses the
         view that Stadtwerke Brixen AG has appreciably greater autonomy than its legal predecessor, the dedicated undertaking Stadtwerke
         Brixen. For, while the dedicated undertaking was under the direct control and influence of the municipal council, the only
         means by which the municipality can influence the public limited company are those provided by company law. The Commission
         and Parking Brixen GmbH advance similar arguments.
      
      67.   The control which a public body exercises over its own departments is usually characterised in law by rights to give instructions
         and supervisory powers. Within a single authority, for example, the authority’s management usually has the right to give instructions
         to the departments under its responsibility. In relation to subordinate authorities, it also has a right to give instructions,
         or at least the possibility, under its supervisory powers, of reviewing and correcting the decisions they take.
      
      68.   In relation to the managerial bodies of public undertakings, at least where these are organised in the form of a public or
         private limited company, such powers of instruction or supervision should be the exception. Accordingly, any requirement that
         the public shareholder should have the same possibilities in law in relation to its contractor as it has in relation to its own departments would make it almost impossible for the first
         Teckal criterion to be fulfilled in respect of capital companies incorporated under private law. In that event, contracting authorities
         would always, even as the sole shareholder, be required to comply with the procurement rules before concluding contracts with subsidiaries of theirs organised as public
         or private limited companies, and would have to assign the performance of their tasks to private third parties if these had
         submitted better tenders. In those circumstances, the mere transfer of tasks to such companies, including in such sensitive
         areas as water supply, would ultimately amount to the compulsory commencement of the privatisation of those tasks.
      
      69.   It may well be that, in certain cases, the conversion of dedicated undertakings into public or private limited companies is
         actually intended as the first step towards privatisation of the tasks in question. However, this is not necessarily so. It may equally conceivably
         be nothing more than an internal reorganisational measure aimed, for example, at securing a more efficient – because more
         cost-effective – provision of services and more flexible working arrangements for employees, there not necessarily being any
         desire on the part of the public body in question to outsource the performance of its tasks at the same time. Moreover, because
         of the accounting rules applicable to them, the choice of public or private limited company as the form of organisation for
         the undertaking may lead to a welcome increase in transparency. (53)
      
      70.   If, on the other hand, the procurement rules were also applied to transactions between contracting authorities and their wholly-owned
         subsidiaries, the private-law form of organisation of a public or private limited company could no longer be used purely for
         the purposes of internal reorganisation. In those circumstances, the public body in question would essentially be left with
         a choice between privatising its tasks (54) or having them performed in-house by departments of the administration or by dedicated undertakings which form part of the
         administrative hierarchy and have no real independence to speak of. In some cases, public bodies might even take the retrograde
         step of converting existing subsidiaries back into dedicated undertakings. 
      
      71.   However, such extensive interference in the organisational sovereignty of Member States and, in particular, in the self-government
         of many municipalities (55) is – even from the point of view of the market-opening function of procurement law – entirely unnecessary. After all, the
         purpose of procurement law is to ensure that contractors are selected in a transparent and non-discriminatory manner in all
         cases where a public body has decided to use third parties to perform certain tasks. However, the spirit and purpose of procurement
         law is not also to bring about, ‘through the back door’, the privatisation of those public tasks which the public body would like to continue to perform by using its own resources. (56) This would require specific liberalisation measures on the part of the legislature. (57)
      
      72.   In any event, through its use of the phrase ‘control similar to that which’, (58) the judgment in Teckal indicates that the possibilities open to an authority for exerting influence over its own departments and over public undertakings
         do not have to be identical. What matters in deciding whether an undertaking is akin to an administrative department or to
         other market operators is not whether, from a formal point of view, the public body has the same possibilities in law as it does in relation to its own departments, for example the right to give instructions in a particular case. What matters
         is rather whether, in practice, the contracting authority is able to attain its public-interest objectives in full at all times. It is only where an undertaking
         has been made independent (autonomous) (59) to such an extent that the contracting authority is no longer able to pursue its interests in full within the undertaking
         that the contracting authority can no longer be said to exercise a control similar to that which it exercises over its own
         departments.
      
      73.   This focus on the interests involved is particularly apparent in the judgment in Stadt Halle, (60) where regard is had exclusively to the pursuit of objectives in the public interest  as the decisive criterion in interpreting the first Teckal criterion. According to the judgment in Stadt Halle, the need to pursue those public interests dictates what possibilities for exerting influence on its departments the public
         body actually requires. (61)
      
      74.   Now, as for what those possibilities for exerting influence actually are, my comments in point 53 of this Opinion apply mutatis mutandis: if a private third party has a holding, even a minority holding, in an undertaking, the consideration given to the economic
         interests of that undertaking may prevent the public body from fully pursuing its public-interest objectives, however legitimate
         such consideration may be from a purely legal point of view. If, on the other hand, the contracting authority is the only
         shareholder in its subsidiary, its interests and those of the subsidiary can normally be deemed to be essentially the same,
         even if the subsidiary is organised as a private or public limited company. More specifically, the sole shareholder has a
         100% economic share in the profits made and is alone able to decide how they are to be used.
      
      75.   Where consideration for the economic interests of private third parties is unnecessary because the public body holds all the
         shares, the pursuit of public interests within the company is made sufficiently possible, even without a formal power of instruction,
         by the means available under company law, and in particular by the presence on the company’s managerial boards of representatives
         nominated (appointed) exclusively by the public body. It seems highly unlikely that these boards, which, moreover, are usually
         characterised by having close personal links with the public body, will, in the day-to-day running of the business, deviate
         from the philosophy of the local authority which nominated them to such an extent as to be capable of frustrating the pursuit
         of objectives in the public interest. What is more, if they did, the representatives in question would be bound to fear that
         they might in future be removed from the board or at least not be re-appointed.
      
      76.   In any event, the mere fact that a company such as Stadtwerke Brixen AG is a public limited company the managerial bodies
         of which have extensive powers in the day-to-day running of the business is not capable of supporting the conclusion that
         that company is autonomous of its public shareholder and that the latter no longer exercises over it a control similar to
         that which it exercises over its own departments.
      
      b)      Second Teckal criterion: the contractor must carry out the essential part of its activities for its public shareholder or shareholders
      
      77.   In accordance with the second Teckal criterion, treatment as an in-house operation is also subject to the condition that the contractor used by the contracting
         authority must carry out the essential part of its activities for the controlling contracting authority.
      
      78.   In the order for reference, the referring court cites only the provisions of Stadtwerke Brixen’s statutes, according to which
         the company’s material field of business comprises an extensive list of activities which can essentially be classified as
         services of general economic interest, capable of being carried out at local, national and international level. (62)
      
      79.   However, such provisions have little indicative value. On the one hand, they are not infrequently framed in particularly broad
         terms which are intended to cover not necessarily only the activities in which the company is engaged at present but also
         any others which it may carry out in future. On the other hand, even restrictions on a public limited company’s field of activity which are laid down in the statutes cannot be relied on as against third
         parties; (63) – by means of the statutes, the company’s shareholders set out only for internal purposes the framework within which its activities may be carried on.
      
      80.   Thus, if account were taken only of the – usually relatively extensive – fields of activity in which a public or private limited
         company is permitted to operate from a purely legal point of view (that is by law or under the company’s statutes), it would
         be practically impossible for such undertakings to fulfil the second Tickal criterion. In those circumstances, contracting authorities would always be required to comply with the procurement rules
         before concluding contracts with their subsidiaries, in so far as those subsidiaries are organised as public or private limited
         companies. This would make the choice of public or private limited company as a form of organisation appreciably less attractive. (64) Such extensive interference in the organisational sovereignty of the Member States and, in particular, the self-government
         of many municipalities is not necessary for the purposes of the market-opening function of public procurement law.
      
      81.   It is sufficient to be guided by the actual activities of the undertaking concerned. (65) For, whatever its form of organisation in law, the activities which an undertaking actually pursues are the best indicator
         of whether that undertaking operates in the same way as others on the market or is so closely connected to the public body
         that contracts between it and the contracting authority can be treated as in-house operations and therefore justify an exception
         to the procurement rules.
      
      82.   In this connection, it should be noted that an exception to the procurement rules is already possible under the second Teckal criterion where the undertaking concerned carries out the essential part of its activities for the controlling contracting authority or authorities. Any activity pursued for third parties is
         therefore innocuous provided that it is of only secondary importance.
      
      83.   In order to decide whether that is so, it is necessary, as I said at the outset, to carry out an assessment of all the circumstances
         of the case in question. If a transaction is to be regarded as an in-house operation, the contractor used by the contracting
         authority must carry out the essential part of its activities, both quantitatively and qualitatively, for the controlling contracting authority or authorities. (66) An initial indicator in this regard may be the share of turnover which that undertaking derives from the contracts with its
         public shareholder. If an undertaking – such as Stadtwerke Brixen, for example – is active in several fields, account must
         also be taken of how many of those areas of business are ones in which the undertaking carries out the essential part of its
         activities for public shareholders and how important each of those areas of business is to the undertaking. (67)
      
      84.   The geographical range of activity of undertakings such as Stadtwerke Brixen AG also requires close examination. The mere
         fact that a municipal public undertaking does or can perform activities beyond the boundaries of a municipality does not necessarily
         mean that it does not carry out the essential part of its activities for that municipality. The examination should concentrate rather on determining what value in quantitative and qualitative terms any such activity
         outside the municipal boundaries has in relation to the activities it performs for its public shareholder or shareholders.
      
      85.   The mere fact that the field of activity defined in the statutes of a public limited company such as Stadtwerke Brixen AG
         is extensive in material terms, and, in geographical terms, also allows activities to be pursued beyond the boundaries of
         the municipality, does not in any event mean that such a public limited company does not in fact carry out the essential part
         of its activities for the controlling municipality.
      
      c)      Interim conclusion 
      86.   In summary, therefore, it is appropriate to find that:
      The fact that a municipality awards the management of a public pay car park to a public limited company in which it is the
         sole shareholder without first carrying out an award procedure does not infringe Articles 43 EC, 49 EC and 86 EC, in so far
         as the municipality exercises over the public limited company a control similar to that which it exercises over its own departments
         and the public limited company carries out the essential part of its activities for the municipality.
      
      The exercise by a contracting authority of a control similar to that which it exercises over its own departments is not automatically
         precluded because the municipality has a statutory obligation to open up the capital of the public limited company to participation
         by third parties within a certain period in the future, or because the managerial bodies of the public limited company have
         extensive powers in the day-to-day running of the business.
      
      The pursuit by a contractor of the essential part of its activities for the municipality is not automatically precluded because
         the field of activity in which the public limited company is permitted to operate under its statutes is extensive in material
         and geographical terms; it is the activities which the company actually carries on which are the decisive criterion.
      
      VI –  Conclusion 
      87.   In the light of the foregoing, I propose that the Court should answer as follows the questions referred for a preliminary
         ruling by the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen:
      
      (1)      A situation where a contracting authority assigns the management of a public car park to an undertaking which may charge a
         fee for the use of the car park and, in return, undertakes to pay annual compensation to the contracting authority does not
         constitute a public service contract within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination
         of procedures for the award of public service contracts, but a service concession not falling within the scope of that directive;
      
      (2)      The fact that a municipality awards the management of a public pay car park to a public limited company in which it is the
         sole shareholder without first carrying out an award procedure does not infringe Articles 43 EC, 49 EC and 86 EC, in so far
         as the municipality exercises over the public limited company a control similar to that which it exercises over its own departments
         and the public limited company carries out the essential part of its activities for the municipality.
      
      The exercise by a contracting authority of a control similar to that which it exercises over its own departments is not automatically
         precluded because the municipality has a statutory obligation to open up the capital of the public limited company to participation
         by third parties within a certain period in the future, or because the managerial bodies of the public limited company have
         extensive powers in the day-to-day running of the business.
      
      The pursuit by a contractor of the essential part of its activities for the municipality is not automatically precluded because
         the field of activity in which the public limited company is permitted to operate under its statutes is extensive in material
         and geographical terms; it is the activities which the company actually carries on which are the decisive criterion.
      
      1 –	Original language: German.
      
      2 –	Judgment in Case C-107/98 Teckal [1999] ECR I-8121, paragraphs 49 and 50, concerning Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for
         the award of public supply contracts (OJ 1993 L 199, p. 1, hereinafter ‘Directive 93/36’).
      
      3 –	See in this regard point 49 of the Opinion of Advocate General Stix-Hackl in Case C-26/03 Stadt Halle [2003] ECR I-0000.
      
      4 –	See, by way of first precedent, the judgment in Teckal (cited in footnote 2). The judgment in Case C-26/03 Stadt Halle and Others [2003] ECR I-0000 was delivered only recently, on 11 January 2005. Other cases, Case C-231/03 Coname, Case C-29/04 Commission v Austria and Case C-216/04 Saba Italia, for example, are currently still pending.
      
      5 –	Council Directive 92/50/EC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts
         (OJ 1992 L 209, p. 1). That directive was repealed and replaced by 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; hereinafter ‘Directive 2004/18’). In terms of time, however, Directive
         92/50 remains applicable to this case.
      
      6 –	Decree-Law.
      
      7 –	Decree-Law 267/2000 bears the title ‘Testo unico delle leggi sull’ordinamento degli enti locali’ (Single text of the laws
         on the organisation of local authorities) and is published in GURI No 227 of 28 September 2000, Ordentliches Beiblatt No 162.
      
      8 –      This provision comes from Article 44 of Regional Law No 1 of 4 January 1993 (Amtsblatt Autonome Region Trentino-Südtirol No
         3 of 19 January 1993, Ordentliches Beiblatt No 1), amended by Article 10 of Regional Law No 10 of 23 October 1998 (Amtsblatt
         Autonome Region Trentino-Südtirol No 45 of 27 October 1998, Beiblatt No 2).
      
      9 –	Municipal Council Decision No 118 of 18 December 2001.
      
      10 –	Municipal Council Decision No 107 of 28 November 2002.
      
      11 –	According to the order for reference, an increase in the parking fee leads to a rise in the annual compensation equal to
         80% of the percentage increase in the corresponding fee.
      
      12 –	Municipal Council Decision No 97 of 25 October 2001.
      
      13 –	The power to make such appointments, as became clear at the hearing, lies with the Municipal Council.
      
      14 –	Cited in footnote 14.
      
      15 –	See in this regard points 1 and 2 of this Opinion.
      
      16 –	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), since repealed and replaced by Directive 2004/17/EC
         of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating
         in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).
      
      17 –	On Article 1(a) of the Services Directive (92/50), see the order in Case C-358/00 Buchhändler-Vereinigung [2002] ECR I-4685, paragraphs 29 and 30; on Article 1(4) of the Utilities Directive (93/38), see the judgment in Case C-324/98
         Telaustria and Telefonadress [2000] ECR I-10745, paragraphs 57 and 58. 
      
      18 –	Article 1(4) of Directive 2004/18.
      
      19 –	Judgment in Telaustria and Telefonadress, paragraph 58, second sentence, and the order in Buchhändler-Vereinigung, paragraph 27, both cited in footnote 17. See also to that effect the prospectively applicable legal definition of service
         concession in Article 1(4) of Directive 2004/18. 
      
      20 –	The Commission also refers in this connection to its interpretative communication on concessions under Community law (OJ
         2000 C 121, p. 2); see in particular paragraph 2.2 of that communication.
      
      21 –	See to this effect, inter alia, the judgment in Case C-235/95 Dumon and Froment [1998] ECR I‑4531, paragraph 25; similarly, the judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 63). 
      
      22 –	The other parties to the proceedings have not commented in any depth on the issue discussed here. The Municipality of Brixen
         and Stadtwerke Brixen AG submit that there is no service concession because Stadtwerke Brixen AG is not a third party in relation
         to the Municipality of Brixen.
      
      23 –	On the inapplicability of Directive 92/50 in circumstances such as those of this case, see my comments on the first question
         (points 27 to 33 of this Opinion).
      
      24 –	In circumstances such as those of this case, the freedom to provide services (Article 49 EC) and – in so far as a foreign
         tenderer proposes to become established in Italy in order to manage the car parks – the freedom of establishment (Article
         43 EC) may be relevant. 
      
      25 –	See to this effect – in particular in the case of a service concession – the judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 60); see also the judgment in Case C‑57/01 Makedoniko Metro and Michaniki [2003] ECR I-1091, paragraph 69, and the order in Case C‑59/00 Vestergaard [2001] ECR I-9505, paragraphs 20 and 21; similarly, the judgment in Case C-92/00 HI [2002] ECR I-5553, paragraph 47.
      
      26 –	Judgments in Telaustria and Telefonadress (cited in footnote 17, paragraph 61) and HI (cited in footnote 25, paragraph 45); judgment in Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31.
      
      27 –      Judgment in Telaustria and Telefonadress (cited in footnote 17, paragraph 62).
      
      28 –	Settled case-law, see most recently the judgment in Case C-293/03 My [2004] ECR I-0000, paragraph 40. With regard specifically to the freedom of establishment and the freedom to provide services,
         see the judgment in Case 115/78 Knoors [1979] ECR 399, paragraph 24, first clause).
      
      29 –	See also the judgment in Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 33, according to which undertakings established in other Member States may be concerned directly
         or indirectly by the award of a contract. Accordingly, requirements relating to the award procedure must be observed irrespective
         of the nationality or place of establishment of the tenderers. This finding applies not only to the requirements laid down
         in the procurement directives but can also be transposed to circumstances such as those of this case which call for the application
         of general principles of Community law.  
      
      30 –	Judgment in Stadt Halle (cited in footnote 4, paragraph 48).
      
      31 –	Judgment in Teckal (cited in footnote 2, paragraphs 46, 49 and 50).
      
      32 –	As regards the scope ratione personae of procurement law, it is necessary – and, on the other hand, sufficient – that one of the parties to the contract should
         be a contracting authority (judgments in Teckal, cited in footnote 2, paragraph 42, second sentence, and Stadt Halle, cited in footnote 4, paragraph 47; see also the judgment in Case C-94/99 ARGE [2000] ECR I-11037, paragraph 40.)
      
      33 –	The criteria, as originally defined, can be found in paragraph 50, second sentence, of the judgment in Teckal (cited in footnote 2) and are also referred to in the judgment in Case C-84/03 Commission v Spain [2005] ECR I-0139, paragraph 38). The same criteria, albeit defined in slightly different words, are applied in the judgment
         in Stadt Halle (cited in footnote 4, paragraph 49, second sentence). The comments that follow are based on the latter definition, unless
         otherwise indicated. 
      
      34 –	In terms of terminology, the judgment in Stadt Halle uses the clumsy formulation ‘public authority which is a contracting authority’; the judgment in Teckal uses the term – based on the circumstances of that case – ‘local authority’.
      
      35 –	In terms of terminology, the contractor is referred to in the judgment in Teckal as the ‘person concerned’; in the judgment in Stadt Halle as ‘entity concerned’.
      
      36 –	The use of the word ‘with’ in the judgment in Stadt Halle and in most language versions of the judgment in Teckal is unusual from a linguistic point of view, given that such a transaction does not usually involve cooperation between two
         undertakings but a relationship in which a public undertaking performs certain tasks or provides certain services for the
         public body which controls it.
      
      37 –	Council Directive 93/37EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts
         (OJ 1993 L199, p. 54), since repealed and replaced by Directive 2004/18.
      
      38 –	On Directive 92/50, see the judgment in Stadt Halle (cited in footnote 4, paragraphs 47 and 49); similar evidence was already to be found in the judgment in ARGE (cited in footnote
         32, paragraph 40). On Directive 93/97, see the judgment in Commission v Spain (cited in footnote 33, paragraph 39).
      
      39 –	On the inapplicability of Directive 92/50 in circumstances such as those of this case, see my comments on the first question
         (points 27 to 33 of this Opinion).
      
      40 –	See in this regard, for example, the sixth recital in the preamble to Directive 92/50 and recital 2 in the preamble to
         Directive 2004/18, as well as the judgments in Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 51. See also points 35 to 37 of this Opinion. 
      
      41 –	Judgment in Stadt Halle (cited in footnote 4, paragraphs 49 and 52).
      
      42 –	See for example in this connection – on the definition of control in the context of concentrations – paragraphs 13, 14
         and 18 et seq. of Commission Notice on the concept of concentration under Council Regulation (EEC) No 4064/89 on the control
         of concentrations between undertakings (OJ 1998 C 66, p. 5).
      
      43 –	See also Article 2 of Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between
         Member States and public undertakings (OJ 1980 L 195, p. 35; last amended by Commission Directive 2000/52/EC of 26 July 2000,
         OJ 2000 L 193, p. 75).
      
      44 –	This is also referred to in the judgment in Stadt Halle (cited in footnote 4, paragraph 50). On the definition of a semi-public undertaking, see, for example, point 58 of the Opinion
         of Advocate General Stix-Hackl in Stadt Halle (cited in footnote 3).
      
      45 –	See Article 115 of Decree-Law 267/2000, on the one hand, and Article 88(6)(b) of the Provisions concerning local government
         together with Article 5(2) of the Statutes of Stadwerke Brixen AG, on the other.
      
      46 –	As became clear at the hearing before the Court, the parties to these proceedings are in disagreement as to whether Article
         115 of Decree-Law 267/2000 does impose a statutory obligation on the municipality to open up the share capital of Stadtwerke
         Brixen AG, or whether, alternatively, the municipality may continue be the sole shareholder in the long term. The Municipality
         of Brixen relies in this regard on Article 2362 of the Italian Civil Code (Codice Civile, as amended by Decree-Law No 6 of
         the President of the Republic of 17 January 2003, Ordentliches Beiblatt No 8), under which, in Italy, public limited companies
         may also consist of a single shareholder.  
      
      47 –	In this case, a term of nine years was agreed in relation to the car park on plot No 491/6; see point 14 of this Opinion.
      
      48 –	Judgment in Stadt Halle (cited in footnote 4, paragraph 51).
      
      49 –	Freedom of establishment (Article 43 EC) and the free movement of capital (Article 56(1) EC).
      
      50 –	See in this regard points 35 to 39 of this Opinion.
      
      51 –	As the referring court points out in its second question, the Administrative Board of Stadtwerke Brixen AG ‘enjoys all
         extensive powers of routine administration up to a value of EUR 5 000 000 per transaction’.
      
      52 –	See Article 9 of, and the second recital in the preamble to, First Council Directive 68/151/EEC of 9 March 1968 on coordination
         of safeguards which, for the protection of the interests of members and others, are required by Member States of companies
         within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout
         the Community (OJ, English Special Edition 1968 (I), p. 41).
      
      53 –	See in particular Article 2 et seq. of Directive 68/151 and Articles 2 and 47 of Fourth Council Directive 78/660/EEC of
         25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222,
         p. 11).
      
      54 –	A publicly-controlled undertaking in the form of a public or private limited company would in some circumstances have to
         bid as one of several potential tenderers for the contract or concession in question.
      
      55 –	Evidence of which can be found in the European Charter of Local Self-Government of 15 October 1985 (ETS No 122), which
         was ratified by most Member States within the framework of the Council of Europe. Article 6(1) of the Charter provides that
         local authorities must ‘be able to determine their own internal administrative structures in order to adapt them to local
         needs and ensure effective management’. Moreover, the importance of local self-government is emphasised by the express reference
         to it in Article I-5(1) of the Treaty establishing a Constitution for Europe (signed in Rome on 29 October 2004, OJ 2004 C 310, p. 1).
      
      56 –	See also in this regard point 42 of this Opinion.
      
      57 –	In this connection, regard should be had, for example, to the liberalisation of the telecommunications sector. See in particular
         in this respect Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications
         networks and services (OJ 2002 L 249, p. 21). See also the Amended Proposal for a Regulation of the European Parliament and
         of the Council on action by Member States concerning public service requirements and the award of public service contracts
         in passenger transport by rail, road and inland waterway (COM (2002) 107 final, OJ 2002 C 151 E, p. 146).
      
      58 –	My emphasis. Unlike the other language versions of the judgment in Teckal, the German version omits the word ‘similar’. This inconsistency was rectified in the judgment in Stadt Halle.
      
      59 –	The judgment in Teckal (cited in footnote 2, paragraph 51) refers to the concept of independence from the contracting authority in regard to decision-making (the French language version uses the adjective autonome, the Italian, the language of the case, the adjective autonomo).
      
      60 –	Judgment in Stadt Halle (cited in footnote 4, paragraph 50).
      
      61 –	The judgment in Stadt Halle (cited in footnote 4, paragraph 50) is worded as follows: ‘[t]he relationship between a public authority which is a contracting
         authority is governed by considerations and requirements proper to the pursuit of objectives in the public interest’.
      
      62 –	See in this regard point 19 of this Opinion.
      
      63 –	Article 9(1) and (2) of Directive 68/151.
      
      64 –	See also in this regard points 68 to 71 of this Opinion.
      
      65 –	Advocate General Stix-Hackl likewise emphasises in point 83 of her Opinion in Stadt Halle (cited in footnote 3) that it is the activities actually carried out which count, not those permitted by law or under the
         undertaking’s statutes.
      
      66 –	See also to this effect Advocate General Stix-Hackl in point 89 of her Opinion in Stadt Halle (cited in footnote 3).
      
      67 –	In a case such as this, consideration should also be given, for example, to the value in relation to the undertaking’s
         activities as a whole of the new areas of work assigned to Stadtwerke Brixen AG in its statutes in addition to those in which
         the former special undertaking was active (that is to say information technology and telecommunications), and who contracted
         the undertaking to carry out such activities.