Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia.
Date: 1999-11-18
29 As regards, first of all, the question whether the value of the contract in question exceeds the threshold laid down in Directives 92/50 and 93/36, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, which means that, when ruling on the interpretation or validity of Community provisions, the Court of Justice is empowered to do so only on the basis of the facts which the national court puts before it (see, in particular, Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt München-Mitte [1994] ECR I-2305, paragraph 16).
30 In that context, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (AC-ATEL Electronics Vertriebs, cited above, paragraph 17).
31 While it is true, therefore, that the method for calculating the amount of the contract is defined in the Community provisions, that is to say, Article 7 of Directive 92/50 and Article 5 of Directive 93/36, on the interpretation of which the national court may, if necessary, submit questions for a preliminary ruling, it is, none the less, by virtue of the division of functions provided for by Article 177 of the Treaty, for the national court to apply the rules of Community law to a specific case.  No such application is possible without a comprehensive appraisal of the facts of the case (see Case C-320/88 Staatssecretaris van Financiën v Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11).
33 Next, it must be pointed out that in the context of Article 177 of the Treaty the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law.  It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it (Case C-17/92 Federación de Distribuidores Cinematográficos v Spanish State [1993] ECR I-2239, paragraph 8).
34 Finally, according to settled case-law, it is for the Court alone, where questions are formulated imprecisely, to extract from all the information provided by the national court and from the documents in the main proceedings the points of Community law which require interpretation, having regard to the subject-matter of those proceedings (Case 251/83 Haug-Adrion v Frankfurter Versicherungs-AG [1984] ECR 4277, paragraph 9, and Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 21).
38 It follows a contrario from Article 2 of Directive 92/50 that, if a public contract relates both to products within the meaning of Directive 93/36 and to services within the meaning of Directive 92/50, 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.
39 In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case 35/85 Procureur de la République v Tissier [1986] ECR 1207, paragraph 9, and Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10).
43 It should be pointed out that the only permitted exceptions to the application of Directive 93/36 are those which are exhaustively and expressly mentioned therein (see, with reference to Directive 77/62, Case C-71/92 Commission v Spain [1993] ECR I-5923, paragraph 10).
44 Directive 93/36 does not contain any provision comparable to Article 6 of Directive 92/50, which excludes from its scope public contracts awarded, under certain conditions, to contracting authorities.
45 It should also be noted that this finding does not affect the obligation on those contracting authorities to apply in turn the tendering procedures laid down in Directive 93/36.
46 In its capacity as a local authority, the Municipality of Viano is a contracting authority within the meaning of Article 1(b) of Directive 93/36.  It is therefore a matter for the national court to ascertain whether the relationship between the Municipality of Viano and AGAC also meets the other conditions which Directive 93/36 lays down for a public supply contract.
49 As to whether there is a contract, the national court must determine whether there has been an agreement between two separate persons.
50 In that regard, in accordance with Article 1(a) of Directive 93/36, 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.
51 The answer to the question must therefore be that Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision-making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority.