Norma-A SIA and Dekom SIA v Latgales plānošanas reģions.
Date: 2011-11-10
39. In that regard, it is sufficient to note that Articles 1(2)(a) and 4 of Directive 2004/18 contain definitions of ‘public contracts’ and ‘service concession’ which are substantially similar to the corresponding definitions in Article 1(2)(a) and (3)(b) of Directive 2004/17. The fact that the definitions are substantially similar 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 (Case C‑206/08 Eurawasser  [2009] ECR I‑8377, paragraphs 42 and 43). Thus, the interpretation of Article 1(2)(a) and (3)(b) of Directive 2004/17 is directly transposable to the corresponding provisions of Directive 2004/18 as, indeed, the Latvian Government admits.
40. The question whether an operation is to be classified as a ‘service concession’ or a ‘public service contract’ must be considered exclusively in the light of European Union law (see, inter alia, Case C‑274/09 Privater Rettungsdienst und Krankentransport Stadler  [2011] ECR I‑0000, paragraph 23 and the case-law cited).
41. It is clear from the definitions of service contract and service concession, contained in Article 1(2)(a) and (d) and Article 1(3) of Directive 2004/17 respectively, 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 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 (see, to that effect, Eurawasser , cited above in paragraph 39, paragraph 51).
42. 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 (see, inter alia, Eurawasser , cited above in paragraph 39, paragraph 57).
44. While the method of remuneration is one of the determining factors for the classification of a service concession, it also follows from the case-law that the service concession implies that the service supplier takes the risk of operating the services in question. The absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession (see, inter alia, Privater Rettungsdienst und Krankentransport Stadler , cited above in paragraph 40, paragraph 26).
45. It is thus necessary to establish whether the service provider takes the risk of operating the service. While that risk may, at the outset, be very limited, it is necessary for classification as a service concession that the contracting authority transfer to the concession holder all or, at least, a significant share of the risk which it faces (see, to that effect, Privater Rettungsdienst und Krankentransport Stadler , cited above in paragraph 40, paragraph 29).
46. It is not unusual that certain sectors of activity, in particular sectors involving public service utilities, such as those at issue in the main proceedings, are subject to rules which may have the effect of limiting the financial risks entailed. 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. 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 ( Eurawasser , paragraphs 72 to 74).
47. 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. 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 ( Eurawasser , paragraphs 75 and 76).
48. The risk linked to such an operation must be understood as the risk of exposure to the vagaries of the market (see, to that effect, Eurawasser , paragraphs 66 and 67), which may, in particular, consist in the risk of competition from other operators, the risk that supply of the services will not match demand, the risk that those liable will be unable to pay for the services provided, the risk that the costs of operating the services will not be met by revenue or also the risk of liability for harm or damage resulting from an inadequacy of the service (see, to that effect, Privater Rettungsdienst und Krankentransport Stadler , paragraph 37).
49. By contrast, risks such as those linked to bad management or errors of judgment by the economic operator are not decisive for the purposes of classification as a public service contract or a service concession, since those risks are inherent in every contract, whether it be a public service contract or a service concession ( Privater Rettungsdienst und Krankentransport Stadler , paragraph 38).
57. It is not for the Court to classify specifically the transaction at issue in the main proceedings. That is within the jurisdiction of the national court alone. The Court’s role is confined to providing the national court with an interpretation of European Union law which will be useful for the decision which it has to take in the dispute before it (see, inter alia, Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraph 32).