Arkkitehtuuritoimisto Riitta Korhonen Oy, Arkkitehtitoimisto Pentti Toivanen Oy and Rakennuttajatoimisto Vilho Tervomaa v Varkauden Taitotalo Oy.
Date: 2003-05-22
19.  As regards the French Government's doubts as to the need for the questions referred and the Commission's objections concerning the lack of detail as to the factual and legal context of the main proceedings, it should be recalled that, according to settled case-law, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see,   inter alia  , Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 38; Case C-390/99   Canal Satélite Digital   [2002] ECR I-607, paragraph 18; and Case C-373/00   Adolf Truley   [2003] ECR I-1931, paragraph 21).
20.  Moreover, it also follows from that case-law that the Court can refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see   PreussenElektra  , paragraph 39,   Canal Satélite Digital  , paragraph 19, and   Adolf Truley  , paragraph 22).
32.  As the Court has consistently held (see,   inter alia  , Case C-360/96   BFI Holding   [1998] ECR I-6821, paragraph 29; Joined Cases C-223/99 and C-260/99   Agorà and Excelsior   [2001] ECR I-3605, paragraph 26; and   Adolf Truley  , paragraph 34), the conditions set out in that provision are cumulative, so that in the absence of any one of them an entity may not be classified as a body governed by public law, and hence as a contracting authority within the meaning of Directive 92/50.
40.  The Court has already held that the second subparagraph of Article 1(b) of Directive 92/50 draws a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character (see,   inter alia  ,   BFI Holding  , paragraph 36, and   Agorà and Excelsior  , paragraph 32). To give a useful answer to the questions put, it must first be ascertained whether activities such as those at issue in the main proceedings in fact meet needs in the general interest and then, if necessary, it must be determined whether such needs have an industrial or commercial character.
43.  In this respect, it may be recalled that, on being asked whether a body whose objects were to carry on and facilitate any activity concerned with the organisation of trade fairs, exhibitions and conferences could be regarded as a body governed by public law within the meaning of Article 1(b) of Directive 92/50, the Court held that activities relating to the organisation of such events meet needs in the general interest, in that an organiser of those events, in bringing together manufacturers and traders in one geographical location, is not acting solely in the individual interest of those manufacturers and traders, who are thereby afforded an opportunity to promote their goods and merchandise, but is also providing consumers who attend the events with information that enables them to make choices in optimum conditions. The resulting stimulus to trade may be considered to fall within the general interest (see   Agorà and Excelsior  , paragraphs 33 and 34).
47.  According to settled case-law, needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives relating to the coordination of procedures for the award of public contracts are generally needs which are satisfied otherwise than by the availability of goods and services in the market place and which, for reasons associated with the general interest, the State chooses to provide itself or over which it wishes to retain a decisive influence (see,   inter alia  ,   BFI Holding  , paragraphs 50 and 51,   Agorà and Excelsior  , paragraph 37, and   Adolf Truley  , paragraph 50).
48.  In the present case, it cannot be excluded that the acquisition of services intended to promote the location of private undertakings on the territory of a particular local authority may, for the reasons referred to in paragraph 45 above, be regarded as meeting a need in the general interest whose character is not industrial or commercial. In assessing whether or not such a need in the general interest is present, account must be taken of all the relevant legal and factual elements, such as the circumstances prevailing at the time when the body concerned was established and the conditions under which it exercises its activity (see, to that effect,   Adolf Truley  , paragraph 66).
49.  In particular, it must be ascertained whether the body in question carries on its activities in a situation of competition, since the existence of such competition may, as the Court has previously held, be an indication that a need in the general interest has an industrial or commercial character (see, to that effect,   BFI Holding  , paragraphs 48 and 49).
50.  However, it also follows from the wording of that judgment that the existence of significant competition does not of itself permit the conclusion that there is no need in the general interest not having an industrial or commercial character (see   Adolf Truley  , paragraph 61). The same applies to the fact that the body in question aims specifically to meet the needs of commercial undertakings. Other factors must be taken into account before reaching such a conclusion, in particular the question of the conditions in which the body in question carries on its activities.
52.  According to settled case-law, the purpose of those directives is to avert both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by other than economic considerations (see, in particular, Case C-380/98   University of Cambridge   [2000] ECR I-8035, paragraph 17; Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraph 52; and   Adolf Truley  , paragraph 42).
54.  In reply to a question put by the Court at the hearing, the Finnish Government further stated that, while it is not impossible that the activities of companies such as Taitotalo may generate profits, the making of such profits can never constitute the principal aim of such companies, since under Finnish law they must always aim primarily to promote the general interest of the inhabitants of the local authority area concerned.
57.  As to the Commission's observation that it cannot be excluded that the activity at issue in the main proceedings represents only a minor part of Taitotalo's activities, that fact, even were it to be established, would be of no relevance to the outcome of the main proceedings, in so far as that company continues to look after needs in the general interest.
58.  According to settled case-law, the status of a body governed by public law is not dependent on the relative importance, within that body's activity, of the meeting of needs in the general interest not having an industrial or commercial character (see   Mannesmann Anlagenbau Austria and Others  , paragraphs 25, 26 and 31;   BFI Holding  , paragraphs 55 and 56; and   Adolf Truley  , paragraph 56).