Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH.
Date: 2009-09-10
33. In that regard, the Court has held that, in the context of the cooperation between the Court and the national courts established by Article 234 EC, 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. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑544/07 Rüffler  [2009] ECR I‑0000, paragraph 36, and the case law cited).
39. The dispute in the main proceedings falls within the temporal scope of Directive 2004/17, since the period laid down in Article 71 of that directive for its implementation expired on 31 January 2006, and the bidding procedure at issue in the main proceedings was launched in September 2007.
42. In addition, it should be recalled that, in relation to its own sphere of application, Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), includes, in Article 1(2)(a) and (4) thereof, definitions of ‘public contracts’ and of ‘service concession’ which are substantially the same as the corresponding definitions in Article 1(2)(a) and (3)(b) of Directive 2004/17.
43. The fact that the definitions are substantially the same means that the same considerations are applicable to an interpretation of the concepts of service contract and service concession within the respective spheres of application of those two directives.
44. It follows that, if the transaction at issue in the main proceedings is categorised as a ‘service contract’ within the meaning of Directive 2004/17, such a contract must, in principle, be concluded in accordance with the procedures laid down in Articles 31 and 32 thereof. On the other hand, under Article 18 of that directive, if that transaction is categorised as a service concession, the directive is not applicable to it. In such circumstances, the awarding of the concession remains subject to the fundamental rules of the Treaty, in general, and to the principles of equal treatment and of non-discrimination on the ground of nationality, and the concomitant obligation of transparency, in particular (see, to that effect, Case C‑324/98 Telaustria and Telefonadress  [2000] ECR I‑10745, paragraphs 60 to 62; Case C‑231/03 Coname  [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraphs 46 to 49; and Case C‑324/07 Coditel Brabant  [2008] ECR I‑0000, paragraph 25).
51. It is clear from a comparison of those two definitions that the difference between a service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration which is paid directly by the contracting authority to the service provider (see, to that effect, Parking Brixen , paragraph 39) while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment.
53. In the light of the criterion set out in paragraph 51 of this judgment, the fact that the service provider is remunerated by payments from third parties, in this case from users of the service in question, is one means of exercising the right, granted to the provider, to exploit the service.
54. That criterion had already been established by the case‑law of the Court prior to the entry into force of Directive 2004/17. According to that case‑law, a service concession existed where the agreed method of remuneration consisted in the right of the service provider to exploit for payment his own service (see, to that effect, Telaustria and Telefonadress , paragraph 58; order in Case C‑358/00 Buchhändler‑Vereinigung  [2002] ECR I‑4685, paragraphs 27 and 28; Case C‑382/05 Commission  v Italy  [2007] ECR I‑6657, paragraph 34; and Case C‑437/07 Commission  v Italy  [2008] not published in the ECR, paragraph 29).
56. The Court has recognised the existence of a service concession, inter alia, where the service provider’s remuneration came from payments made by users of a public car park, of public service transport and of a teledistribution network (see Parking Brixen , paragraph 40; Case C‑410/04 ANAV  [2006] ECR I‑3303, paragraph 16; and Coditel Brabant , paragraph 24).
57. It follows therefrom that, in the case of a contract for the supply of services, the fact that the supplier is not remunerated directly by the contracting authority, but is entitled to collect payment from third parties, meets the requirement of consideration laid down in Article 1(3)(b) of Directive 2004/17.
59. It is clear from the case law of the Court that, when the agreed method of remuneration consists in the right for the provider to exploit the service it is providing, that method of remuneration means that the provider takes the risk of operating the services in question (see, to that effect, Parking Brixen , paragraph 40; Case C‑382/05 Commission  v Italy , paragraph 34; and Case C‑437/07 Commission  v Italy , paragraph 29 ).
66. In that regard, it must be stated that risk is inherent in the economic operation of the service.
67. If the contracting authority continues to bear all of the risk by not exposing the supplier to the vagaries of the market, the awarding of the right to operate the service requires that the formalities provided for in Directive 2004/17 be applied, with a view to safeguarding transparency and competition.
68. In the complete absence of a transfer to the service provider of the risk connected with operating the service, the transaction concerned is a service contract (see, to that effect, Case C‑234/03 Contse and Others  [2005] ECR I‑9315, paragraph 22; Case C‑382/05 Commission  v Italy , paragraphs 35 to 37; and, by analogy, in relation to a works concession, Case C‑437/07 Commission  v Italy , paragraphs 30 and 32 to 35). As was stated in paragraph 51 of this judgment, in the case of a service contract, the consideration does not consist in the right to exploit the service.
72. It is not unusual that certain sectors of activity, in particular sectors involving public service utilities, such as the distribution of water and the disposal of sewage, are subject to rules which may have the effect of limiting the financial risks entailed.
73. First, the detailed rules of public law, to which the economic and financial operation of the service is subject, facilitate the supervision of how that service is operated, and scale down the factors which may threaten transparency and distort competition.
74. Second, it must remain open to the contracting authorities, acting in all good faith, to ensure the supply of services by way of a concession, if they consider that to be the best method of ensuring the public service in question, even if the risk linked to such an operation is limited.
75. Moreover, it would not be reasonable to expect a public authority granting a concession to create conditions which were more competitive and involved greater financial risk than those which, on account of the rules governing the sector in question, exist in that sector.
76. In such circumstances, as the contracting authority has no influence on the detailed rules of public law governing the service, it is impossible for it to introduce and, therefore, to transfer risk factors which are excluded by those rules.
77. In any event, even if the risk run by the contracting authority is very limited, it is necessary that the contracting authority transfer to the concession holder all, or at lea st a significant share, of the operating risk which it faces, in order for a service concession to be found to exist.
78. It is for the national court to assess whether there has been a transfer of all, or a significant share, of the risk faced by the contracting authority.
80. Therefore, the answer to the first and second questions is that, in relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for that contract to be categorised as a ‘service concession’ within the meaning of Article 1(3)(b) of Directive 2004/17, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.
The third question