Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa and Others.
Date: 2009-10-15
30. It should be recalled that the information that must be provided to the Court in the context of a reference for a preliminary ruling does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the governments of the Member States, and other interested parties, to submit observations in accordance with Article 23 of the Statute of the Court of Justice. For those purposes, according to settled case-law, it is necessary, first, that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Second, the referring court must set out the precise reasons why it was unsure as to the interpretation to be given to Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In consequence, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see, inter alia, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 34).
38. The question whether such an operation is to be classed as a ‘service concession’ or a ‘public service contract’ must be considered exclusively in the light of Community law (see, inter alia, Case C‑382/05 Commission  v Italy  [2007] ECR I‑6657, paragraph 31).
39. The difference between a service contract and a service concession lies in the consideration for the provision of services (see, inter alia, Case C‑206/08 WAZV Gotha [2009] ECR I‑0000, paragraph 51). A public service contract within the meaning of Directives 2004/18 and 2004/17 involves consideration which is paid directly by the contracting authority to the service provider (see, inter alia, Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraph 39). A service concession is present where the agreed method of remuneration consists in the right to exploit the service and the provider takes the risk of operating the services in question (see, inter alia, the judgment of 13 November 2008 in Case C‑437/07 Commission  v Italy , paragraphs 29 and 31, and WAZV Gotha , paragraphs 59 and 68).
43. The Court has recognised the existence of a services concession, inter alia, in cases in which the service provider’s remuneration came from payments made by users of a public car park, a public transport system and a cable television network (see Parking Brixen , paragraph 40; Case C‑410/04 ANAV  [2006] ECR I‑3303, paragraph 16; and Case C‑324/07 Coditel Brabant  [2008] ECR I‑0000, paragraph 24).
45. Moreover, it is not disputed that the execution of the works connected with the exclusive management of the integrated water service at issue in the main proceedings is incidental to the main object of the concession in question, which is to provide that service, so that the latter cannot be characterised as a ‘public works concession’ (see to that effect, inter alia, Case C‑331/92 Gestión Hotelera Internacional  [1994] ECR I‑1329, paragraphs 26 to 28, and Article 9(1) of Directive 2004/17).
46. Notwithstanding the fact that public service concession contracts are excluded from the scope of Directives 2004/18 and 2004/17, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, inter alia, ANAV , paragraph 18).
47. The provisions of the Treaty which are specifically applicable to public service concessions include, in particular, Article 43 EC and Article 49 EC (see, inter alia, ANAV , paragraph 19).
48. Besides the principle of non-discrimination on the ground of nationality, the principle of equal treatment as between tenderers is also to be applied to public service concessions, even in the absence of discrimination on grounds of nationality (see, inter alia, ANAV , paragraph 20).
49. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That authority’s obligation of transparency consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and a review of the impartiality of the procurement procedures (see, inter alia, ANAV , paragraph 21).
50. 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 concessions without their being put out to competition, since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non-discrimination and transparency (see, inter alia, ANAV , paragraph 23).
51. However, 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 excluded if the control exercised over the concessionaire by the concession-granting public authority is comparable to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority (see, inter alia, ANAV , paragraph 24). In such a case, an invitation to tender is not mandatory, even if the other party to the contract is an entity that is legally distinct from the contracting authority (see, inter alia, Case C‑573/07 Sea  [2009] ECR I‑0000, paragraph 36).
52. That case-law is relevant for the interpretation of Directives 2004/18 and 2004/17 as well as Articles 43 EC and 49 EC and also of the general principles of which the latter are the specific expression (see, inter alia, Sea , paragraph 37).
53. Where a private undertaking has a holding, even a minority holding, in the capital of a company in which the contracting authority in question also has a holding, it is impossible for that contracting authority to exercise over that company control comparable to that which it exercises over its own departments (see, inter alia, Sea , paragraph 46).
56. It is apparent from case-law that the award of a public contract to a semi-public company without a call for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment, in that such a procedure would offer a private undertaking with a capital holding in that company an advantage over its competitors ( Stadt Halle and RPL Lochau , paragraph 51, and Case C‑29/04 Commission  v Austria  [2005] ECR I‑9705, paragraph 48).
57. Furthermore, as stated at paragraph 2.1 of the Commission Interpretative Communication on the application of Community Law on Public Procurement and Concessions to Institutionalised Public-Private Partnerships (IPPPs) (OJ 2008 C 91, p. 4), the fact that a private entity and a contracting entity cooperate within a semi-private entity cannot serve as justification for the contracting entity not having to comply with the legal provisions on concessions when assigning concessions to that private entity or to the respective semi-private entity.
62. It should be noted that a company with share capital with mixed public and private ownership, such as that in question in the main proceedings, must retain the same corporate purpose throughout the duration of concession and it will be necessary, if there is any material amendment to the contract, to launch a new competitive tendering procedure (see, to that effect, Case C‑454/06 pressetext Nachrichtenagentur  [2008] ECR I‑4401, paragraph 34).