Carbotermo SpA and Consorzio Alisei v Comune di Busto Arsizio and AGESP SpA.
Date: 2006-05-11
31. The Court has held previously that, if a public procurement contract relates both to products within the meaning of Directive 93/36 and to services within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public supply contracts (OJ 1992 L 209, p. 1), it will fall within the scope of Directive 93/36 if the value of the products covered by the contract exceeds that of the services (Case C-107/98 Teckal  [1999] ECR I‑8121, paragraph 38). A contract such as that at issue in the main proceedings, where the value of the products covered by the contract exceeds that of the services, therefore falls within the scope of Directive 93/36, as the national court, moreover, has already found.
32. For there to be a contract within the meaning of Article 1(a) of Directive 93/36, there must have been an agreement between two separate persons ( Teckal , paragraph 49).
33. In accordance with Article 1(a) of that directive, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities ( Teckal , paragraph 50).
36. In order to determine whether the contracting 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 successful tenderer is subject to a control enabling the contracting authority to influence that company’s decisions. It must be a case of a power of decisive influence over both strategic objectives and significant decisions of that company (see Case C-458/03 Parking Brixen  [2005] ECR I‑0000, paragraph 65).
37. The fact that the contracting authority holds, alone or together with other public authorities, all of the share capital in a successful tenderer tends to indicate, without being decisive, that that contracting authority exercises over that company a control similar to that which it exercises over its own departments, as contemplated in paragraph 50 of Teckal .
45. Moreover, as the Court stated in paragraph 43 of Teckal , the only permitted exceptions to the application of Directive 93/36 are those which are exhaustively and expressly mentioned therein.
46. Directive 93/36 does not contain any provision comparable to Article 6 of Directive 92/50, which excludes from its scope of application public contracts awarded, under certain conditions, to contracting authorities ( Teckal , paragraph 44).
58. It should be borne in mind that the principal objective of the Community rules in the field of public procurement is the free movement of services and the opening-up to undistorted competition in all the Member States (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I-1, paragraph 44).
60. The requirement that the person in question must carry out the essential part of its activities with the controlling authority or authorities is aimed precisely at ensuring that Directive 93/36 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market and therefore likely to be in competition with other undertakings.
61. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling authority, if it can still carry out a large part of its economic activities with other operators.
62. It is still necessary that that undertaking’s services be intended mostly for that authority alone. Within such limits, it appears justified that that undertaking is not subject to the restrictions of Directive 93/36, since they are in place to preserve a state of competition which, in that case, no longer has any raison d’être .
63. In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal  only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance.
64. In order to determine if that is the case, the competent court must take into account all the facts of the case, both qualitative and quantitative.
65. As to the issue of whether it is necessary to take into account in that context only the turnover achieved with the supervisory authority or that achieved within its territory, it should be held that the decisive turnover is that which the undertaking in question achieves pursuant to decisions to award contracts taken by the supervisory authority, including the turnover achieved with users in the implementation of such decisions.
69. It should be borne in mind in this connection that the Court has stated that the legally distinct person in question must carry out the essential part of its activities with ‘the controlling local authority or authorities’ ( Teckal , paragraph 50). It thus envisaged the possibility that the exception provided for could apply not only in cases where a single authority controls such a legal person, but also where several authorities do so.
70. Where several authorities control an undertaking, the condition relating to the essential part of its activities may be met if that undertaking carries out the essential part of its activities, not necessarily with one of those authorities, but with all of those authorities together.
71. Accordingly, the activities to be taken into account in the case of an undertaking controlled by one or more authorities are those which that undertaking carries out with all of those authorities together.