Rhein-Sieg-Kreis v Verkehrsbetrieb Hüttebräucker GmbH and BVR Busverkehr Rheinland GmbH and Rhenus Veniro GmbH & Co. KG v Kreis Heinsberg.
Date: 2019-03-21
54


In that regard, it must be borne in mind, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).
55


Secondly, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).
56


Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the interested persons (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 28 and the case-law cited).
73


Since contracts for public passenger transport services by bus and by tram not relating to concessions had already been made subject, as is apparent from paragraph 70 above, to Directives 2004/17 and 2004/18 prior to the adoption of Regulation No 1370/2007, new legislation was not felt to be necessary for the awards of such contracts which, therefore, remain as a matter of course subject, as the case may be, to the application of Directive 2004/17 or Directive 2004/18.
74


In that regard, the Court points out that the case-law on the direct award of public contracts has been developed on the basis, and in consideration, of those directives, which implies that the origin and rationale of the direct award regime is to be found there.
75


According to the Court’s case-law, the direct awards regime which applies to the situations falling within the scope of Directives 2004/17 and 2004/18 constitutes an exception to the application of the procedures provided for by those directives (see, to that effect, judgment of 8 May 2014, Datenlotsen Informationssysteme, C‑15/13, EU:C:2014:303, paragraph 25) and is, therefore, intrinsically linked to those two directives and their legal regime.
76


In the judgment of 18 November 1999, Teckal (C‑107/98, EU:C:1999:562, paragraph 50), which was the first to acknowledge that the specific nature of direct awards gives grounds for not applying the public procurement rules, the Court held that while, for the purposes of applying those rules in accordance with Article 1(a) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority, the position can be otherwise in the case where the public authority, which is a contracting authority, exercises over the separate entity in question a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activities with the controlling public authority or authorities. Following that judgment, the Court made clear the conditions for applying that regime, in particular in the judgments of 11 January 2005, Stadt Halle and RPL Lochau (C‑26/03, EU:C:2005:5), and of 11 May 2006, Carbotermo and Consorzio Alisei (C‑340/04, EU:C:2006:308), and then in the context of Directives 2004/17 and 2004/18, in the judgments of 10 September 2009, Sea (C‑573/07, EU:C:2009:532), and of 8 May 2014, Datenlotsen Informationssysteme (C‑15/13, EU:C:2014:303).
77


In addition, it must be pointed out that Directives 2014/24 and 2014/25, which repealed and replaced Directives 2004/18 and 2004/17 respectively, both (in Article 12 of Directive 2014/24 and Article 28 of Directive 2014/25), codified and made clear the Court’s case-law on direct awards.
78


Even though that codification of the general regime for direct awards does not apply ratione temporis to the disputes in the main proceedings, it demonstrates that the EU legislature intended that regime to be linked to Directives 2014/24 and 2014/25.