Sea Srl v Comune di Ponte Nossa.
Date: 2009-09-10
31. The first point to be noted is that the award of a service for collecting, transporting and disposing of urban waste, such as that at issue in the main proceedings, may, depending on the particular nature of the consideration for that service, fall within the definition of public service contracts or within that of a public service concession for the purpose of Article 1(2)(d) or Article 1(4) of Directive 2004/18.
32. So far as may be deduced from what is set out in the decision for reference and in the file sent to the Court of Justice by the court making that reference, the contract at issue in the main proceedings might constitute a public service contract, especially by reason of the fact that the contract concluded between Setco and the Comune di Ponte Nossa for the provision of the services in question provides for the Comune to pay Setco consideration for the services supplied by the latter.
33. It is possible for such a contract to fall within the ambit of Directive 2004/18, as being a service contract for the removal of waste belonging to Category 16 of Annex II A to that directive.
34. The decision for reference does not, however, contain the information needed in order to determine whether this is a public service contract or a public service concession or, in the latter case, whether all the conditions for the application of that directive have been satisfied.  In particular, it does not make clear whether the amount of the contract at issue in the main proceedings crosses the threshold for application of that directive.
35. On any view, whether the case in the main proceedings concerns a service concession or a public service contract, and whether or not, in the latter case, such a service contract falls within the ambit of Directive 2004/18, are matters that do not influence the reply to be given by the Court of Justice to the question referred for a preliminary ruling.
36. Indeed, according to the Court’s case-law, an invitation to tender is not mandatory when a contract for valuable consideration has been concluded with a body distinct from the local authority that is the contracting authority, in a situation in which that authority exercises control over that body, even if the cocontractor is a body legally distinct from the contracting authority, so long as the local body that is the contracting authority exercises over the legally distinct body in question control similar to that which it exercises over its own departments and so long as that body carries out the essential part of its activities with the controlling local authority or authorities (see, to that effect, Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 50).
37. That case-law is relevant for the interpretation of both Directive 2004/18 and Articles 12 EC, 43 EC, and 49 EC, and also of the general principles of which the latter are the specific expression (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 49, and Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraph 62).
38. It is to be borne in mind that, despite the fact that certain contracts do not fall within the ambit of the Community public procurement directives, the contracting authorities concluding them are bound to comply with the fundamental rules of the Treaty (see, to that effect, Case C‑324/98 Telaustria and Telefonadress  [2000] ECR I‑10745, paragraph 60, and the order of 3 December 2001 in Case C‑59/00 Vestergaard  [2001] ECR I‑9505, paragraph 20).
39. So far as the award of public service contracts is concerned, contracting authorities must, in particular, comply with Articles 43 EC and 49 EC, and also observe the principles of equal treatment and non-discrimination on grounds of nationality, and the duty of transparency stemming therefrom as well (see, to that effect, Parking Brixen , paragraphs 47 to 49, and Case C‑410/04 ANAV  [2006] ECR I‑3303, paragraphs 19 to 21).
40. Application of the rules set out in Articles 12 EC, 43 EC and 49 EC, and also of the general principles of which they are the specific expression, is, however, excluded if the local body which is the contracting authority exercises over the contracting entity control 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; Parking Brixen , paragraph 62; and Case C‑480/06 Commission  v Germany  [2009] ECR I‑0000, paragraph 34).
41. That the contracting entity is a company in no way excludes the application of the exception permitted by the case-law referred to in the previous paragraph.  In ANAV  the Court of Justice accepted that the case-law was applicable to a company limited by shares.
45. In order to answer that question it is to be borne in mind that the fact of the contracting authority’s holding, together with other public authorities, all the share capital in a contractor company, tends to indicate, but not conclusively, that that contracting authority exercises over that company control similar to that which it exercises over its own departments (see, to that effect, Case C‑340/04 Carbotermo and Consorzio Alisei  [2006] ECR I‑4137, paragraph 37, and Case C‑324/07 Coditel Brabant  [2008] ECR I‑0000, paragraph 31).
46. In contrast, the holding, even a minority holding, of a private undertaking in the capital of a company in which the contracting authority in question also has a holding too means that, on any view, it is impossible for that contracting authority to exercise over that company control similar to that which it exercises over its own departments (see, to that effect, Stadt Halle and RPL Lochau , paragraph 49, and Coditel Brabant , paragraph 30).
47. As a general rule, whether there actually exists a private holding in the capital of the company to which the public contract at issue is awarded must be determined at the time of that award (see, to that effect, Stadt Halle and RPL Lochau , paragraphs 15 and 52).  It may also be relevant to take account of the fact that, when a contracting authority awards a contract to a company whose entire capital it holds, the national legislation applicable provides for the compulsory opening of that company, in the short term, to other capital (see, to that effect, Parking Brixen , p aragraphs 67 and 72).
48. Exceptionally, special circumstances may require events occurring after the date on which the contract in question was awarded to be taken into consideration.  Such is the case, in particular, when shares in the contracting company, previously wholly owned by the contracting authority, are transferred to a private undertaking shortly after the contract at issue has been awarded to that company by means of an artificial device designed to circumvent the relevant Community rules (see, to that effect, Case C‑29/04 Commission  v Austria [2005] ECR I‑9705, paragraphs 38 to 41).
52. That conclusion is not shaken by the considerations set out in paragraph 26 of Case C‑231/03 Coname  [2005] ECR I‑7287, indicating that the fact that a company such as that concerned in the case giving rise to that judgment is open to private capital prevents it from being regarded as a structure for the ‘in-house’ management of a public service on behalf of the municipalities which form part of it.  In that case, a public service was awarded to a company in which not all, but most, of the capital was public, and so mixed, at the time of that award ( Coname , paragraphs 5 and 28).
55. The case-law does not require the control exercised over the contracting company in such a case to be individual (see, to that effect, Coditel Brabant , paragraph 46).
56. In a situation in which several public authorities choose to carry out certain of their public service tasks by having recourse to a company that they own in common, it is usually not possible for one of those authorities, having only a minority holding in that company, to exercise decisive control over the latter’s decisions.  In such a case, to require the control exercised by a public authority to be individual would have the effect of requiring a competitive tendering procedure in most cases in which such an authority seeks to become a member of a company owned by other public authorities for the purpose of awarding to that company the management of a public service (see, to that effect, Coditel Brabant , paragraph 47).
57. Such a result would not be in keeping with the system of Community rules on public procurement and concession contracts.  It is accepted that it is open to a public authority to perform the public interest tasks entrusted to it by relying on its own administrative, technical and other resources, without being obliged to call on outside entities not belonging to its own departments ( Stadt Halle and RPL Lochau , paragraph 48; Coditel Brabant , paragraph 48; and Commission  v Germany , paragraph 45).
58. Public authorities may act in cooperation with other public authorities in making use of that opportunity to rely on their own resources in order to perform their public-service tasks (see, to that effect, Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 57, and Coditel Brabant , paragraph 49).
59. It must, therefore, be recognised that when several public authorities own a company 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 by them jointly (see, to that effect, Coditel Brabant , paragraph 50).
60. With regard to a body that takes its decisions collectively, the procedure used for the taking of those decisions, in particular recourse to a majority decision, is immaterial (see Coditel Brabant , paragraph 51).
61. Nor is that conclusion shaken by Coname .  It is true that the Court considered, in paragraph 24 of that judgment, that a 0.97% interest is so small that it cannot enable a municipality to exercise control over a concessionaire running a public service.  However, in that passage of the judgment, the Court was not concerned with the question whether such control could be exercised jointly ( Coditel Brabant , paragraph 52).
62. Furthermore, the Court has subsequently recognised, in Asemfo  (paragraphs 56 to 61), that in certain circumstances the condition relating to the control exercised by the public contracting authority could be satisfied where such an authority held only 0.25% of the capital in a public undertaking ( Coditel Brabant , paragraph 53).
63. It follows that, if a public authority becomes a minority shareholder in a company limited by shares with wholly public capital for the purpose of awarding the management of a public service to that company, the control that the public authorities which are members of that company exercise over it may be classified as similar to the control they exercise over their own departments when it is exercised by those authorities jointly.
65. In order to determine whether the contracting authority exercises over the contracting company control similar to that which it exercises over its own departments, account has to be taken of all the legislative provisions and relevant circumstances.  It must follow from that examination that the contracting company is subject to control enabling the contracting authority to influence that company’s decisions.  It must be a case of a power of decisive influence over both the strategic objectives and the significant decisions of that company (see, to that effect, Carbotermo and Consorzio Alisei , paragraph 36, and Coditel Brabant , paragraph 28).
68. By using those words, the Italian legislature has reproduced word for word the conditions set out in paragraph 50 of the judgment in Teckal , and upheld in several later judgments of the Court.  That national legislation is, in principle, compatible with Community law, on the understanding that the interpretation of that legislation also must comply with the requirements of Community law (see, to that effect, ANAV , paragraph 25).
80. That conclusion is borne out by the fact that the second condition laid down in paragraph 50 of Teckal , namely, that the contracting company should carry out the essential part of its activities with the controlling authorities, allows that company to carry on activity of a marginal kind with operators other than local authorities (see, to that effect, Carbotermo and Consorzio Alisei , paragraph 63).  That condition would be rendered nugatory if the first condition laid down in paragraph 50 of Teckal  were interpreted as prohibiting any ancillary activity, including the private sector.