Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administración General del Estado.
Date: 2007-12-18
36. In addition, it must be observed that whilst the Court does not have jurisdiction under Article 234 EC to apply the rules of Community law to a particular case or to judge the compatibility of provisions of national law with those rules, it may provide a national court with all the elements relating to the interpretation of Community law which may be useful to it in assessing the effects of the provisions of that law (see Case C‑181/00 Flightline  [2002] ECR I‑6139, paragraph 20).
40. The fact remains that, as regards such reserved services, Community rules in the field of public procurement, which have as their principal objective the free movement of services and the opening-up to undistorted competition in all the Member States, cannot be applied (Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 44, and Case C‑340/04 Carbotermo and Consorzio Alisei  [2006] ECR I‑4137, paragraph 58).
50. In this respect, it must be noted that the definition of a public service contract is a matter of Community law, with the result that the classification of the Cooperation Agreement under Spanish law is irrelevant for the purposes of determining whether it falls within the scope of Directive 92/50 (see, to that effect, Case C-264/03 Commission  v France  [2005] ECR I-8831, paragraph 36, and Case C-382/05 Commission  v Italie  [2007] ECR I-0000, paragraph 30).
51. Admittedly, in paragraph 54 of its judgment in Case C-295/05 Asemfo  [2007] ECR I-0000, the Court held that the requirement for the application of the directives governing the award of public service contracts relating to the existence of a contract was not met where the State company in issue in the case that gave rise to the judgment had no choice as to the acceptance of a demand made by the competent authorities in question or as to the tariff for its services, a matter which was for the referring court to establish.
52. However, that reasoning must be read in its specific context. It follows on from the finding that, under Spanish legislation, that State company is an instrument and a technical service of the General State Administration and of the administration of each of the Autonomous Communities concerned, the Court having already held, in a context different from that in the case that gave rise to the judgment in Asemfo ,  that being an instrument and technical service of the Spanish Administration, the company in issue is required to implement only work entrusted to it by the General Administration of that State, the Autonomous Communities or the public bodies subject to them ( Asemfo , paragraphs 49 and 53).
58. In this regard, it is important to recall that, according to the Court’s settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority which is a contracting authority must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Case C-107/98 Teckal  [1999] ECR I‑8121, paragraph 50; Stadt Halle and RPL Lochau , paragraph 49; Carbotermo and Consorzio Alisei , paragraph 33; and Asemfo , paragraph 55).
62. That last requirement is aimed particularly at ensuring that Directive 92/50 remains applicable in the event that an undertaking controlled by one or more entities is active in the market and therefore likely to be in competition with other undertakings (see, by analogy, Carbotermo and Consorzio Alisei , paragraph 60). It is not contested that Correos is active on the Spanish postal market, where it is, except as regards reserved services within the meaning of Directive 97/67, in competition with other businesses active in the postal sector, of which, according to the submissions of the Spanish Government, there are approximately 2 000.
67. As is apparent from the case-law of the Court, Member States do not have the option of extending the services reserved for the universal postal service provider pursuant to Article 7 of Directive 97/67, as such extension goes against the purpose of the Directive, which, according to recital 8, aims to establish gradual and controlled liberalisation in the postal sector (Case C‑240/02 Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería  [2004] ECR I‑2461, paragraph 24).
71. Although certain contracts are excluded from the scope of Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on grounds of nationality in particular (Case C‑264/03 Commission  v France  [2005] ECR I‑8831, paragraph 32 and the case-law cited there).
72. That is particularly the case in relation to public service contracts whose value does not reach the thresholds fixed by Directive 92/50. The mere fact that the Community legislature considered that the strict special procedures laid down in the directives on public procurement are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from the scope of Community law (Order in Case C-59/00 Vestergaard  [2001] ECR I-9505, paragraph 19, and Commission  v France , paragraph 33).
74. Besides the principle of non-discrimination on grounds of nationality, the principle of equal treatment of tenderers is also to be applied to such public service contracts even in the absence of discrimination on grounds of nationality (see, by analogy, Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraph 48, and Case C‑410/04 ANAV  [2006] ECR I‑3303, paragraph 20).
75. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the contracting public authority to verify that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the public service contract to be opened up to competition and the impartiality of procurement procedures to be reviewed (see, by analogy, Parking Brixen , paragraph 49, and ANAV , paragraph 21).
76. As a rule, a complete lack of any call for competition in the case of the award of a public service contract like that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency (see, by analogy, Parking Brixen , paragraph 50, and ANAV , paragraph 22).
77. Furthermore, it follows from Article 86(1) EC that the Member States must not maintain in force national legislation which permits the award of public service contracts without a call for tenders since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency (see, by analogy, Parking Brixen , paragraph 52, and ANAV , paragraph 23).
78. Admittedly, the combined effect of paragraphs (1) and (2) of Article 86 EC is that paragraph (2) of the Article may be relied upon to justify the grant by a Member State to an undertaking entrusted with the operation of services of general economic interest of special or exclusive rights which are contrary to, inter alia, the provisions of the Treaty, to the extent to which performance of the particular task assigned to that undertaking can be assured only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community (Case C‑340/99 TNT Traco  [2001] ECR I‑4109, paragraph 52).
79. It is also necessary to point out that an undertaking like Correos, responsible by virtue of the legislation of a Member State for securing the universal postal service, constitutes an undertaking entrusted with the operation of services of general economic interest for the purposes of Article 86(2) EC (see, to that effect, TNT Traco , paragraph 53).
82. In this context, it must be recalled that, within the framework of Directive 97/67, account is taken of whether, in order to enable the universal postal service to be carried out under economically acceptable conditions, it is necessary to reserve some postal services to the provider of that universal postal service (Case C‑162/06 International Mail Spain  [2007] ECR I-0000, paragraph 50).
86. As regards the argument of the Spanish Government according to which the Cooperation Agreement cannot be subject to the rules governing public procurement because it concerns an ‘in-house’ situation, it is admittedly the case that, in the sphere of public service contracts, the application of  the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as the general principles of which they are the specific expression, is precluded if the control exercised by the contracting public authority over the entity to which the contract was awarded is similar to that which the authority exercises over its own departments and if that entity carries out the essential part of its activities with the controlling authority (see, by analogy, Parking Brixen , paragraph 62, and ANAV , paragraph 24).