Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben.
Date: 2010-03-25
38. It is settled case-law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of European Union law. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑372/88 Cricket St Thomas  [1990] ECR I‑1345, paragraphs 18 and 19; Case C‑149/97 Institute of the Motor Industry  [1998] ECR I‑7053, paragraph 16; and Case C‑239/07 Sabatauskas and Others  [2008] ECR I‑7523, paragraphs 38 and 39).
47. In addition, only a contract concluded for pecuniary interest may constitute a public contract coming within the scope of Directive 2004/18.
48. The pecuniary nature of the contract means that the contracting authority which has concluded a public works contract receives a service pursuant to that contract in return for consideration. That service consists in the realisation of works from which the contracting authority intends to benefit (see Case C-399/98 Ordine degli Architetti and Others  [2001] ECR I‑5409, paragraph 77, and Case C-220/05 Auroux and Others  [2007] ECR I‑385, paragraph 45).
49. Such a service, by its nature and in view of the scheme and objectives of Directive 2004/18, must be of direct economic benefit to the contracting authority.
50. That economic benefit is clearly established where it is provided that the public authority is to become owner of the works or work which is the subject of the contract.
51. Such an economic benefit may also be held to exist where it is provided that the contracting authority is to hold a legal right over the use of the works which are the subject of the contract, in order that they can be made available to the public (see, to that effect, Ordine degli Architetti and Others , paragraphs 67, 71 and 77).
52. The economic benefit may also lie in the economic advantages which the contracting authority may derive from the future use or transfer of the work, in the fact that it contributed financially to the realisation of the work, or in the assumption of the risks were the work to be an economic failure (see, to that effect, Auroux and Others , paragraphs 13, 17, 18 and 45).
53. The Court has already held that an agreement by which a first contracting authority entrusts a second contracting authority with the execution of a work may constitute a public works contract, 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 ( Auroux and Others , paragraph 47).
61. It is irrelevant whether the contractor carries out the works itself or uses subcontractors for that purpose (see, to that effect, Ordine degli Architetti and Others , paragraph 90, and Auroux and Others , paragraph 44).
62. Since the obligations under the contract are legally binding, their execution must be legally enforceable. In the absence of rules provided for under European Union law, and in accordance with the principle of procedural autonomy, the detailed rules governing implementation of those obligations are a matter for national law.
67. In order for it to be possible to establish that a contracting authority has specified its requirements within the meaning of that provision, the authority must have taken measures to define the type of the work or, at the very least, have had a decisive influence on its design.
75. It should, in addition, be pointed out that the essential characteristic of the concession is that it is the concessionaire himself who bears the main, or at least the substantial, operating risk (see to that effect, with regard to concessions relating to public services, Case C‑206/08 Eurawasser  [2009] ECR I‑0000, paragraphs 59 and 77).
79. In any event, with regard to the duration of concessions, there are serious grounds, including the need to guarantee competition, for holding the grant of concessions of unlimited duration to be contrary to the European Union legal order, as stated by the Advocate General in points 96 and 97 of his Opinion (see, to the same effect, Case C‑454/06 pressetext Nachrichtenagentur  [2008] ECR I‑4401, paragraph 73).