Jean Auroux and Others v Commune de Roanne.
Date: 2007-01-18
25. The Court has consistently held that the procedure laid down in Article 234 EC is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the Community acts referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (see, to that effect, Case 27/74 Demag [1974] ECR 1037, paragraph 8; Case C-347/89 Eurim-Pharm  [1991] ECR I-1747, paragraph 16; and Case C-246/04 Turn- und Sportunion Waldburg  [2006] ECR I-589, paragraph 20).
26. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see Case C-448/01 EVN and Wienstrom  [2003] ECR I-14527, paragraph 74, and Case C-145/03 Keller  [2005] ECR I-2529, paragraph 33). Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling.
33. The French Government submits that the part of the leisure centre which concerns the execution of works which are intended to be sold to third parties does not constitute a public works contract within the meaning of the Directive. It takes the view that precisely because that part is intended for third parties it cannot be regarded as corresponding to the municipality’s requirements. It adds that only the construction of the car park on behalf of the municipality of Roanne could, in principle, constitute a public works contract. However, the car park does not fall within the scope of the Directive either, as it will be transferred to the municipality only after it has been constructed in accordance with a special procedure laid down by French law called ‘vente en l’état future d’achèvement’, so that it is essentially a simple purchase of real property, the subject-matter of which is not so much the works as the sale of works to be constructed.
35. The arguments put forward by the municipality of Roanne and the French and Polish Governments cannot be accepted.
36. It is true that, in addition to the execution of works, the agreement entrusts SEDL with further tasks which have, as several parties have observed, the character of a supply of services. However, contrary to the municipality of Roanne’s submissions, it does not follow from the mere fact the agreement contains elements which go beyond the execution of works that it falls outside the scope of the Directive.
37. It is clear from the case-law of the Court that, where a contract contains elements relating both to a public works contract and another type of public contract, it is the main purpose of the contract which determines which Community directive on public contracts is to be applied in principle (see Case C-331/92 Gestiόn Hotelera Internacional [1994] ECR I-1329, paragraph 29).
38. As regards the application of that case-law to these proceedings, it should be stated, contrary to the Polish Government’s arguments in its written observations, that under the agreement SEDL’s commitment is not limited to the administration and organisation of works, but also extends to the execution of the works set out therein. Furthermore, according to settled case-law, in order to be classed as a contractor under a public works contract within the meaning of Article 1(a) of the Directive, it is not necessary that a person who enters into a contract with a contracting authority is capable of direct performance using his own resources (see, to that effect, Case C-389/92 Ballast Nedam Groep  [1994] ECR I-1289, paragraph 13, and Case C-176/98 Holst Italia  [1999] ECR I-8607, paragraph 26). It follows that in order to ascertain whether the main purpose of the agreement is the execution of works it is irrelevant that SEDL does not execute the works itself and that it has them carried out by subcontractors.
40. As regards the legal classification by the French Government of the car park, it must be observed that the definition of a public works contract is a matter of Community law. Since Article 1(a) of the Directive makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, the legal classification of the contract in French law is irrelevant for the purpose of determining whether the contract falls within the scope of the Directive (see, by analogy, Case C-264/03 Commission  v France  [2005] ECR I-8831, paragraph 36).
42. Furthermore, the construction of the leisure centre must be regarded as corresponding to the requirements specified by the municipality of Roanne in the agreement. It must be observed, in that regard, that the work referred to by the agreement is the leisure centre as a whole, including the construction of a multiplex cinema, service premises for leisure activities, a car park and, possibly, a hotel. It is clear from a number of clauses in the agreement that, by the construction of the leisure centre as a whole, the municipality of Roanne seeks to reposition and regenerate the area around the railway station.
44. Second, it is common ground that SEDL, as an economic operator active on the market which undertakes to execute works provided for in the agreement, is to be regarded as a contractor within the meaning of the Directive. As was stated in paragraph 38 of this judgment, it is irrelevant in that respect that SEDL uses subcontractors for the design and execution of the works (see, to that effect, Case C-399/98 Ordine degli Architetti and Others  [2001] ECR I-5409, paragraph 90).
45. Finally, it is clear that the agreement was concluded for pecuniary interest. The pecuniary interest in a contract refers to the consideration paid to the contractor on account of the execution of works intended for the contracting authority (see, to that effect, Ordine degli Architetti and Others , paragraph 77). Under the terms of the agreement, SEDL is to receive a sum from the municipality of Roanne as consideration for the transfer of the car park. The municipality also undertakes to contribute to the costs of all the works to be executed. Finally, under the agreement, SEDL is entitled to obtain income from third parties as consideration for the sale of the works executed.
46. It is apparent from the examination of the agreement that its main purpose, as the Commission submitted, is the performance of works which, taken as a whole, lead to the execution of a work within the meaning of Article 1(c) of the Directive, that is to say a leisure centre. The service elements provided for in the agreement, such as the acquisition of property, obtaining finances, organising an architecture and/or engineering competition and marketing the buildings, are part of the completion of that work.
47. Having regard to the foregoing, the answer to the first question must be that an agreement by which a first contracting authority entrusts a second contracting authority with the execution of a work constitutes a public works contract within the meaning of Article 1(a) of the Directive, regardless of whether or not it is anticipated that the first contracting authority is or will become the owner of all or part of that work.
The second question
53. Since the aim of the procedures for the award of public works contracts laid down in the Directive is precisely to guarantee to potential tenderers established in the European Community access to public contracts of interest to them, it follows that whether the value of a contract reaches the threshold laid down in Article 6 of the Directive should be calculated from the tenderers’ perspective.
59. It must be observed, as a preliminary point, that the only permitted exceptions to the application of the Directive are those which are expressly mentioned in it (see, by analogy, Case C-107/98 Teckal  [1999] ECR I-8121, paragraph 43, and Case C‑340/04 Carbotermo and Consorzio Alisei [2006] ECR I-4137, paragraph 45).
60. The Directive does not contain any provision comparable to that in Article 6 of Directive 92/50, which excludes from its scope public contracts awarded, under certain conditions, to contracting authorities (see, by analogy, Teckal , paragraph 44, and Carbotermo and Consorzio Alisei , paragraph 46).
62. It follows that a contracting authority is not exempt from using the procedures for the award of public works contracts provided for by the Directive, on the ground that it plans to conclude the contract concerned with a second contracting authority (see, by analogy, Teckal , paragraph 51; Case C-94/99 ARGE  [2000] ECR I-11037, paragraph 40; and Case C-26/03 Stadt Halle and RPL Lochau  [2005] ECR I-1, paragraph 47). Furthermore, that finding does not affect the obligation on the latter contracting authority to apply in its turn the tendering procedures laid down in the Directive (see, by analogy, Teckal , paragraph 45).
63. It is true that, according to the Court’s case-law, a call for competition is not compulsory for contracts concluded between a local authority and a person legally distinct from it, where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities (see, Teckal , paragraph 50, and Case C-84/03 Commission  v Spain  [2005] ECR I-139, paragraphs 38 and 39).
64. However, the fact that SEDL is a semi-public company, whose capital includes private funds, prevents the municipality of Roanne from being regarded as exercising a control over it similar to that which it exercises over its own departments. The Court has held that any private capital investment in an undertaking follows considerations proper to private interests and pursues objectives of a different kind from those pursued by a public authority (see Stadt Halle and RPL Lochau , paragraphs 49 and 50). The reasoning adopted by the Court in Stadt Halle and RPL Lochau  with respect to public service contracts also applies with respect to public works contracts.