Coditel Brabant SA v Commune d’Uccle and Région de Bruxelles-Capitale.
Date: 2008-11-13
24. It is apparent from the referral decision that, by becoming a member of Brutélé, the Municipality of Uccle entrusted it with the management of its cable television network. It is also apparent that Brutélé’s remuneration comes not from the municipality but from payments made by the users of that network. That method of remuneration is characteristic of a public service concession (Case C-458/03 Parking Brixen  [2005] ECR I-8585, paragraph 40).
25. Public service concession contracts do not fall within the scope 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), which was applicable at the material time. Notwithstanding the fact that such contracts fall outside the scope of that directive, the authorities concluding them are bound to comply with the fundamental rules of the EC Treaty, the principles of equal treatment and non-discrimination on grounds of nationality, and the concomitant obligation of transparency (see, to that effect, Telaustria and Telefonadress , paragraphs 60 to 62, and Case C‑231/03 Coname  [2005] ECR I-7287, paragraphs 16 to 19). Without necessarily implying an obligation to launch an invitation to tender, that obligation of transparency requires the concession-granting authority to ensure, for the benefit of any potential concessionaire, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of the procurement procedures to be reviewed (see, to that effect, Telaustria and Telefonadress , paragraph 62, and Coname , paragraph 21).
26. The application of the rules set out in Articles 12 EC, 43 EC and 49 EC, as well as of the general principles of which they are the specific expression, is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar 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 or authorities (see, to that effect, Teckal , paragraph 50, and Parking Brixen , paragraph 62).
28. In order to determine whether a concession-granting public authority exercises a control similar to that which it exercises over its own departments, it is necessary to take account of all the legislative provisions and relevant circumstances. It must follow from that examination that the concessionaire in question is subject to a control which enables the concession-granting public authority to influence that entity’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions of that entity (see, to that effect, Parking Brixen , paragraph 65, and Case C-340/04 Carbotermo and Consorzio Alisei  [2006] ECR I-4137, paragraph 36).
30. As regards the first of those facts, it should be borne in mind that, where a private undertaking holds a share of the capital of a concessionaire, this precludes the possibility for a concession-granting public authority to exercise over that concessionaire a control similar to that which it exercises over its own departments (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I-1, paragraph 49).
31. On the other hand, the fact that the concession-granting public authority holds, alone or together with other public authorities, all of the share capital in a concessionaire, tends to indicate – generally, but not conclusively – that that contracting authority exercises over that company a control similar to that which it exercises over its own departments ( Carbotermo and Consorzio Alisei , paragraph 37, and Case C-295/05 Asemfo  [2007] ECR I-2999, paragraph 57).
41. It follows from the foregoing that, subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, the control exercised, via the statutory bodies, by the public authorities belonging to such an inter-municipal cooperative society over that society’s decisions may be regarded as enabling those authorities to exercise over that cooperative society control similar to that exercised over their own departments.
44. First, it should be pointed out that, according to the case-law of the Court, where several public authorities control a concessionaire, the condition relating to the essential part of that entity’s activities may be met if account is taken of the activities which that entity carries out with all those authorities (see, to that effect, Carbotermo and Consorzio Alisei , paragraphs 70 and 71, and Asemfo , paragraph 62).
46. According to the case-law, the control exercised over the concessionaire by a concession-granting public authority must be similar to that which the authority exercises over its own departments, but not identical in every respect (see, to that effect, Parking Brixen , paragraph 62). The control exercised over the concessionaire must be effective, but it is not essential that it be exercised individually.
47. Secondly, where a number of public authorities elect to carry out their public service tasks by having recourse to a municipal concessionaire, it is usually not possible for one of those authorities, unless it has a majority interest in that entity, to exercise decisive control over the decisions of the latter. To require the control exercised by a public authority in such a case to be individual would have the effect of requiring a call for competition in the majority of cases where a public authority seeks to join a grouping composed of other public authorities, such as an inter-municipal cooperative society.
48. Such a result, however, would not be consistent with Community rules on public procurement and concession contracts. Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments ( Stadt Halle and RPL Lochau , paragraph 48).
49. That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities (see, to that effect, Asemfo , paragraph 65).
50. It must therefore be recognised that, where a number of public authorities own a concessionaire to which they entrust the performance of one of their public service tasks, the control which those public authorities exercise over that entity may be exercised jointly.
51. As regards collective decision-making bodies, the procedure which is used for adopting decisions – such as, inter alia, adoption by majority – is of no importance.
52. That conclusion is not undermined by Coname . Admittedly, the Court considered in that judgment that a 0.97% interest is so small as to preclude a municipality from exercising control over the concessionaire managing a public service (see Coname , paragraph 24). However, in that passage of the judgment, the Court was not concerned with the question whether such control could be exercised jointly.
53. Furthermore, in a later judgment – namely, Asemfo , paragraphs 56 to 61 – the Court recognised that in certain circumstances the condition relating to the control exercised by the public authority could be satisfied where such an authority held only 0.25% of the capital in a public undertaking.