Commission of the European Communities v Federal Republic of Germany.
Date: 2009-06-09
33. Under Article 1(c) of that directive, the service provider party to the contract may be ‘any natural or legal person, including a public body’. Thus, the fact that the service provider is a public entity distinct from the beneficiary of the services does not preclude the application of Directive 92/50 (see, to that effect, Commission  v Spain , paragraph 40, regarding a public supply and works contract).
34. However, the Court’s case-law shows that a call for tenders is not mandatory where a public authority which is a contracting authority exercises over the separate entity concerned control similar to that which it exercises over its own departments, provided that that entity carries out the essential part of its activity with the public authority or with other controlling local or regional authorities (see, to that effect, Teckal , paragraph 50, and Stadt Halle and RPL Lochau , paragraph 49).
35. Likewise, the Court has held, in respect of the delegation by a municipality of a public service to an inter-municipal cooperative the object of which was exclusively to provide services to the affiliated municipalities, that that could legally take place without a call for tenders, since it considered that, notwithstanding the autonomous aspects of that cooperative’s management by its board, the affiliated municipalities had to be regarded as together exercising control over it (see, to that effect, Case C-324/07 Coditel Brabant [2008] ECR I‑0000, paragraph 41).
37. It must nevertheless be observed that the contract at issue establishes cooperation between local authorities with the aim of ensuring that a public task that they all have to perform, namely waste disposal, is carried out. That task relates to the implementation of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), which requires the Member States to draw up plans for waste management providing, in particular for ‘appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste’, one of the most important of such measures being, pursuant to Article 5(2) of Council Directive 91/156/EEC of 18 March 1991, amending Directive 75/442 (OJ 1991 L 78, p. 32), ensuring that waste be treated in the nearest possible installation.
44. It thus appears that the contract in question forms both the basis and the legal framework for the future construction and operation of a facility intended to perform a public service, namely thermal incineration of waste. That contract was concluded solely by public authorities, without the participation of any private party, and does not provide for or prejudice the award of any contracts that may be necessary in respect of the construction and operation of the waste treatment facility.
45. The Court has pointed out, in particular, that a public authority has the possibility of performing the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities (see Coditel Brabant , paragraphs 48 and 49).
47. It must be observed though, first, that Community law does not require public authorities to use any particular legal form in order to carry out jointly their public service tasks. Secondly, such cooperation between public authorities does not undermine the principal objective of the Community rules on public procurement, that is, the free movement of services and the opening-up of undistorted competition in all the Member States, where implementation of that cooperation is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, is respected, so that no private undertaking is placed in a position of advantage vis-à-vis competitors (see, to that effect, Stadt Halle and RPL Lochau , paragraphs 50 and 51).