Wall AG v La ville de Francfort-sur-le-Main and Frankfurter Entsorgungs- und Service (FES) GmbH.
Date: 2010-04-13
32. Since Articles 43 EC and 49 EC are specific applications of the general prohibition of discrimination on grounds of nationality laid down in Article 12 EC, there is no need to refer to Article 12 EC in order to answer the question (see, to that effect, Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others  [2001] ECR I‑1727, paragraphs 38 and 39, and Case C‑105/07 Lammers & Van Cleeff  [2008] ECR I‑173, paragraph 14).
33. As European Union law now stands, service concession contracts are not governed by any of the directives by which the legislature has regulated the field of public procurement (see Coname , paragraph 16, and Case C‑347/06 ASM Brescia  [2008] ECR I‑5641, paragraph 57). However, the public authorities concluding them are bound to comply with the fundamental rules of the EC Treaty, including Articles 43 EC and 49 EC, and with the consequent obligation of transparency (see, to that effect, Telaustria and Telefonadress , paragraphs 60 to 62; Coname , paragraphs 16 to 19; and Parking Brixen , paragraphs 46 to 49).
34. That obligation of transparency applies where the service concession in question may be of interest to an undertaking located in a Member State other that in which the concession is awarded (see, to that effect, Coname , paragraph 17; see also, by analogy, Case C‑507/03 Commission  v Ireland  [2007] ECR I‑9777, paragraph 29, and Case C‑412/04 Commission  v Italy  [2008] ECR I‑619, paragraph 66).
35. That the service concession at issue in the main proceedings may be of interest to undertakings located in a Member State other than the Federal Republic of Germany follows from the order for reference, in that the referring court states that the call for applications was announced in the official gazette of the City of Frankfurt at ‘EU-wide’ level, and that it considers that a breach of the obligation of transparency could constitute discrimination, at least potentially, against undertakings in other Member States.
36. The obligation of transparency to be complied with by public authorities concluding service concession contracts consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to allow the service concession to be opened up to competition and the impartiality of the award procedures to be reviewed (see Telaustria and Telefonadress , paragraphs 60 to 62; Parking Brixen , paragraphs 46 to 49; and ANAV , paragraph 21).
37. In order to ensure transparency of procedures and equal treatment of tenderers, substantial amendments to essential provisions of a service concession contract could in certain cases require the award of a new concession contract, if they are materially different in character from the original contract and are therefore such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract (see, by analogy with public contracts, Case C‑337/98 Commission  v France  [2000] ECR I‑8377, paragraphs 44 and 46, and Case C‑454/06 pressetext Nachrichtenagentur  [2008] ECR I‑4401, paragraph 34).
38. An amendment to a service concession contract during its currency may be regarded as substantial if it introduces conditions which, if they had been part of the original award procedure, would have allowed for the admission of tenderers other than those originally admitted or would have allowed for the acceptance of an offer other than that originally accepted (see, by analogy, pressetext Nachrichtenagentur , paragraph 35).
39. A change of subcontractor, even if the possibility of a change is provided for in the contract, may in exceptional cases constitute such an amendment to one of the essential provisions of a concession contract where the use of one subcontractor rather than another was, in view of the particular characteristics of the services concerned, a decisive factor in concluding the contract, which is in any event for the referring court to ascertain.
42. If, in making that assessment, the referring court were to conclude that an essential element of the concession contract was being altered, all necessary measures would have to be taken, in accordance with the national legal system of the Member State concerned, to restore the transparency of the procedure, which might extend to a new award procedure. If need be, a new award procedure would have to be organised in a manner appropriate to the specific features of the service concession involved, and would have to ensure that an undertaking located in another Member State had access to sufficient information on that concession before it was awarded.
48. Those articles and the principles of equal treatment and non-discrimination on grounds of nationality, and the consequent obligation of transparency, pursue the same objectives as Directive 92/50, in particular the free movement of services and their opening up to undistorted competition in the Member States.
51. Moreover, the other 49% of the capital of FES is held not by one or more other public authorities but by a private undertaking which, as such, follows considerations proper to private interests and pursues objectives other than the public interest (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 50).
55. Such a relationship is analogous to that which exists in normal commercial relations formed by bilateral contracts freely negotiated between the contracting parties (see, to that effect, Case C‑380/98 University of Cambridge  [2000] ECR I‑8035, paragraph 25).
63. According to the Court’s case-law, in the absence of European Union rules, it is for the domestic legal system of each Member State to regulate the legal procedures for safeguarding rights which individuals derive from European Union law (see, to that effect, Case C‑432/05 Unibet  [2007] ECR I‑2271, paragraph 39 and the case-law cited).
64. Such procedures must be no less favourable than similar domestic procedures (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by the law of the European Union (principle of effectiveness) (see, to that effect, Unibet , paragraph 43 and the case-law cited).
68. It must be observed here that the obligation of transparency derives from the law of the European Union, in particular Articles 43 EC and 49 EC (see, to that effect, Coname , paragraphs 17 to 19). Those provisions, whose observance the Court ensures, have direct effect in the domestic legal systems of the Member States and take precedence over any contrary provision of national law.
69. By virtue in particular of Article 4(3) TEU, all the authorities of the Member States must ensure the observance of the rules of European Union law within the sphere of their competence (see, to that effect, Case C‑2/06 Kempter  [2008] ECR I‑411, paragraph 34 and the case-law cited).
70. It is for the national court to interpret the national law which it has to apply, as far as is at all possible, in a manner which accords with the requirements of European Union law and, in particular, ensures that the obligation of transparency is observed (see, to that effect, Case C‑327/00 Santex  [2003] ECR I‑1877, paragraph 63 and the case-law cited).