Commission of the European Communities v Federal Republic of Germany.
Date: 2004-11-18
18. It must be answered in that regard that, under Article 1(b) of Directive 92/50, regional or local authorities are, by definition, contracting authorities. It is clear from case-law that Article 1(a) of the directive makes no distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task (see, by way of analogy, in relation to Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the awarding of public works contracts (OJ 1993 L 199, p. 54), Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 32). It is likewise irrelevant that the contracting authority intends to operate as a provider of services itself and that the contract in question aims, in that context, to subcontract a part of the activities to a third party. It is conceivable that the decision of the contracting authority as to the choice of that third party will be based on considerations that are not economic ones. It follows that, whatever the nature and context of the contract at issue may be, it constitutes a ‘public contract’ within the meaning of Article 1(a) of Directive 92/50.
22. The German Government also argues that it would have been impossible in practice to award the contract at issue in accordance with Titles III to VI of Directive 92/50, inasmuch as, in order to demonstrate its technical capability for the purposes of Article 32(2)(c) and (h) of that directive when the invitation to tender was issued by AWG Donau‑Wald, the City of Munich needed to communicate the name of its subcontractor at the time its offer was lodged. In that regard it is true that a service provider which, with a view to being admitted to participate in a tendering procedure, intends to rely on the resources of entities or undertakings with which it is directly or indirectly linked must establish that it actually has available to it the resources of those entities or undertakings which are necessary for the performance of the contract but which it does not itself own (see, to that effect, Case C-176/98 Holst Italia  [1999] ECR I-8607, paragraph 29; Case C-399/98 Ordine degli Architetti and Others  [2001] ECR I-5409, paragraph 92; and Case C-314/01 Siemens and ARGE Telekom & Partner  [2004] ECR I‑0000, paragraph 44). However, in the present case, it would in any event have been possible for the City of Munich to undertake an accelerated restricted procedure under Article 20 of Directive 92/50 between the issuing of the invitation to tender and the lodging of its offer.
23. The German Government maintains that the contract at issue could, by reason of Article 11(3)(d) of Directive 92/50, have been awarded using a negotiated procedure without prior publication of a contract notice. It should be pointed out in that regard that, as a derogation from the rules intended to ensure the effectiveness of the rights conferred by the EC Treaty in relation to public service contracts, Article 11(3)(d) of Directive 92/50 must be interpreted strictly and that the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (see Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 58). The application of Article 11(3) of the directive is thus subject to three cumulative conditions. It requires the existence of an unforeseeable event, extreme urgency rendering the observance of time-limits laid down by other procedures impossible, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see, in relation to Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), Case C-107/92 Commission v Italy [1993] ECR I-4655, paragraph 12, and Case C-318/94 Commission  v Germany  [1996] ECR I-1949, paragraph 14). In the present case, as was held in paragraph 22 of this judgment, it would have been possible for the City of Munich to undertake an accelerated restricted procedure (see, in relation to Directive 71/305, Case C-24/91 Commission  v Spain  [1992] ECR I-1989, paragraph 14, and Commission v Italy, paragraph 13). It follows that the Federal Republic of Germany has not shown that a situation of extreme urgency existed.
26. In that regard, it is sufficient to reply that while, in proceedings for failure to fulfil obligations under Article 226 EC, the Court is only required to find that a provision of Community law has been infringed, it is clear from Article 228(1) EC that the Member State concerned is required to take the measures necessary to comply with the judgment of the Court.