Adolf Truley GmbH v Bestattung Wien GmbH.
Date: 2003-02-27
21.  Suffice it to point out in this regard that, according to the settled case-law of the Court, in particular the above judgment in   Durighello  , cited by Bestattung Wien, 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 (Durighello  , paragraph 8). Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling.
22.  Moreover, the Court has also consistently held that it may 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,   inter alia  , Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 39, and Case C-390/99   Canal Satélite Digital   [2002] ECR I-607, paragraph 19).
34.  The second subparagraph of Article 1(b) of that directive merely states that such needs must not have an industrial or commercial character, while it is clear from an overall reading of that article that meeting needs in the general interest which are not industrial or commercial in character is a necessary, but not sufficient, condition for designating a body as a   "body governed by public law"   and, therefore, a   "contracting authority"   within the meaning of Directive 93/36. In order to be covered by that directive, the body must also have legal personality and depend heavily, for its financing, management or supervision, on the State, regional or local authorities or other bodies governed by public law (see, with respect to the cumulative nature of the criteria laid down, in the same terms, in the second subparagraph of Article 1(b) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and the second subparagraph of Article 1(b) of Directive 93/37,   Mannesmann Anlagenanbau Austria  , paragraphs 21 and 38,   BFI Holding  , paragraph 29, Case C-237/99   Commission   v   France   [2001] ECR I-939, paragraph 40, and Joined Cases C-223/99 and C-260/99   Agorà and Excelsior   [2001] ECR I-3605, paragraph 26).
35.  According to settled case-law, the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see,   inter alia  ,   Ekro  , cited above, paragraph 11, Case C-287/98   Linster and Others   [2000] ECR I-6917, paragraph 43, and Case C-357/98   Yiadom   [2000] ECR I-9265, paragraph 26).
36.  In the present case, it is common ground that the second subparagraph of Article 1(b) of Directive 93/36 makes no express reference to the law of the Member States, with the result that the abovementioned terms must be given an autonomous and uniform interpretation throughout the Community.
39.  Second, while it is clear from the wording of Article 1(b) of Directive 93/36 that the list in Annex I to Directive 93/37 is intended to be as complete as possible and may be revised pursuant to the procedure provided for in Article 35 of Directive 93/37, that list is in no way exhaustive (see,   inter alia  ,   BFI Holding  , paragraph 50, and   Agorà and Excelsior  , paragraph 36) as its accuracy varies considerably from one Member State to another.
40.  It follows that the term   "needs in the general interest"   in Article 1(b) of Directive 93/36 is a Community-law concept and must be interpreted in the light of the context of that article and the purpose of that directive.
41.  The Court has already ruled on several occasions that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, in particular, Case C-380/98   University of Cambridge   [2000] ECR I-8035, paragraph 16, Case C-237/99   Commission   v   France  , cited above, paragraph 41, Case C-92/00   HI   [2002] ECR I-5553, paragraph 43, and Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraph 51).
42.  Furthermore, settled case-law also shows that the purpose of the Community directives coordinating procedures for the award of public contracts is to avoid 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 considerations other than economic ones (see, in particular,   University of Cambridge  , cited above, paragraph 17,   Commission   v   France  , cited above, paragraph 42, and   Universale-Bau  , cited above, paragraph 52).
43.  Given the double objective of introducing competition and transparency, the concept of a body governed by public law must be interpreted as having a broad meaning.
44.  Accordingly, if a specific body is not listed in Annex I to Directive 93/37, its legal and factual situation must be determined in each individual case in order to assess whether or not it meets a need in the general interest.
45.  In light of the foregoing, the answer to the first limb of the first question must be that the term   "needs in the general interest"   in the second subparagraph of Article 1(b) of Directive 93/36 is an autonomous concept of Community law.
The second limb of the first question
50.  The Court has already held that needs in the general interest, not having an industrial or commercial character, within the meaning of Article 1(b) of the Community directives coordinating the award of public contracts are generally needs which are satisfied otherwise than by the availability of goods and services in the marketplace 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   BFI Holding  , paragraphs 50 and 51, and   Agorà and Excelsior  , paragraph 37).
56.  In any event, even if funeral services   "in the narrow sense of the term"   constitute only a relatively unimportant part of the services provided by a funeral undertaker, that fact is irrelevant since that undertaking continues to meet needs in the general interest. According to settled case-law, the status of a body governed by public law is not dependent on the relative importance, within its business as a whole, of the meeting of needs in the general interest not having an industrial or commercial character (see   Mannesmann Anlagenanbau Austria  , paragraphs 25, 26 and 31, and   BFI Holding  , paragraphs 55 and 56).
59.  In that regard, it is sufficient to observe that, faced with a similar question, the Court held, in paragraph 47 of   BFI Holding  , that the absence of competition is not a condition which must necessarily be taken into account in defining a body governed by public law. The requirement that there should be no private undertakings capable of meeting the needs for which the body financed by the State, regional or local authorities or other bodies governed by public law was set up would be liable to render meaningless the term   "body governed by public law"   used in Article 1(b) of Directive 93/36 (see, to that effect,   BFI Holding  , paragraph 44).
61.  It follows from the same wording used in the judgment in   BFI Holding   that, although not entirely irrelevant, 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.
66.  In light of the foregoing, the answer to the second question must be that the existence of significant competition does not, of itself, allow the conclusion to be drawn that there is no need in the general interest, not having an industrial or commercial character. The national court must assess whether or not there is such a need, taking account of all the relevant legal and factual circumstances, such as those prevailing at the time of establishment of the body concerned and the conditions under which it exercises its activity.
The third question
68.  In that regard, suffice it to note that, according to the settled case-law of the Court (see,   inter alia  ,   University of Cambridge  , paragraph 20, and   Commission   v   France  , paragraph 44), each of the alternative conditions set out in the third indent of the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37 reflects the close dependency of a body on the State, regional or local authorities or other bodies governed by public law.
70.  In the light of that case-law, the criterion of managerial supervision cannot be regarded as being satisfied in the case of mere review since, by definition, such supervision does not enable the public authorities to influence the decisions of the body in question in relation to public contracts.