Commission of the European Communities v French Republic.
Date: 2005-10-20
29. Admittedly, since the commencement of this action, the French authorities have amended Law No 85‑704 by allowing the agency of delegated project contracting henceforth to be entrusted to any public or private person, thus abolishing the requirement that the agent be a legal person under French law. It is appropriate none the less to point out that the question whether a Member State has failed to fulfil its obligations must be determined with reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, among others, Case C‑63/02 Commission  v United Kingdom  [2003] ECR I-821, paragraph 11, and Case C‑313/03 Commission  v Italy , not published in the ECR, paragraph 9). The Court cannot take account of any subsequent changes (see, among others, Case C‑482/03 Commission  v Ireland , not published in the ECR, paragraph 11, and Case C-341/02 Commission v Germany [2005] ECR I‑2733, paragraph 33).
32. As regards the complaint alleging breach of Article 49 EC, it is appropriate to point out that the provisions of the EC Treaty relating to freedom of movement are intended to apply to public contracts which are outside the scope of Directive 92/50. Although certain contracts are excluded from the scope of Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on grounds of nationality in particular (see, to that effect, Case C‑324/98 Telaustria and Telefonadress  [2000] ECR I‑10745, paragraph 60; Case C‑92/00 HI  [2002] ECR I‑5553, paragraph 47, and the order of 3 December 2001 in Case C‑59/00 Vestergaard  [2001] ECR I‑9505, paragraph 20).
33. That is particularly the case in relation to public service contracts the value of which does not reach the thresholds fixed by Directive 92/50. The mere fact that the Community legislature considered that the strict special procedures laid down in the directives on public procurement are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from the scope of Community law (see the order in Vestergaard , paragraph 19). Likewise, contracts outside the scope of Directive 92/50, such as concession agreements, continue to be subject to the general rules of the Treaty (see, to that effect, Case C-231/03 Coname  [2005] ECR I‑7287, paragraph 16).
36. In order to establish whether the agency agreement of delegated project contracting within the meaning of Law No 85‑704 falls within the scope of Directive 92/50, it is necessary to examine whether the criteria established in Article 1(a) of that directive are met. Since that provision makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, there is no need to inquire as to how French law categorises such agreements.
50. In that regard, the French Government has not asserted the existence of circumstances in which the contracting authority is responsible for a structure for the ‘in‑house’ management of a public service within the meaning of the Court’s case‑law (see, to that effect, Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 50, and Coname , paragraph 26). Indeed, there is no suggestion that the principal exercises over the agent a control similar to that which it exercises over its own departments and that the agent carries out the essential part of its activities with the controlling public authority or authorities (see, to that effect, Case C-26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 49).
56. The reasoning followed by the Court in paragraph 100 of the judgment in Ordine degli Architetti and Others , relating to the application of Directive 93/37, is not such as to undermine that conclusion. The Court observed, as regards compliance with that directive in cases concerning the execution of infrastructure works in circumstances such as were presented to it, that it was not necessary for the municipal authorities themselves to apply the award‑of‑contract‑procedures laid down by that provision. That directive was still given full effect as long as the national legislation allowed the municipal authorities to require the developer holding the building permit to carry out the work contracted for in accordance with those procedures.
66. Article 49 EC prohibits restrictions on freedom to provide services within the European Community in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. Furthermore, it is settled case‑law that that provision requires the elimination of any restriction, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see, in particular, Case C‑262/02 Commission  v France  [2004] ECR I‑6569, paragraph 22, and Case C‑429/02 Bacardi France  [2004] ECR I-6613, paragraph 31 and the case‑law cited therein).
67. In particular, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment, thereby depriving of all practical effectiveness the provisions of the Treaty whose object is to guarantee the freedom to provide services (see Case C-180/89 Commission  v Italy  [1991] ECR I‑709, paragraph 15).