Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa and Others.

• Jurisdiction: European Union
• Celex Number: 62008CJ0196
• ECLI: ECLI:EU:C:2009:628
• Date: 15 October 2009
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-196/08

Case C-196/08

Acoset SpA

v

Conferenza Sindaci and Presidenza Prov. Reg. ATO Idrico Ragusa and Others

(Reference for a preliminary ruling from the

Tribunale amministrativo regionale della Sicilia)

(Articles 43 EC, 49 EC and 86 EC – Award of public contracts – Award of water service to a semi-private company – Competitive procedure – Appointment of the private partner responsible for operating the service – Award made without regard to the rules governing the award of public contracts)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Concession to operate a public service – Public-private partnership

(Arts 43 EC, 49 EC and 86 EC)

Articles 43 EC, 49 EC and 86 EC do not preclude the direct award of a public service which entails the prior execution of certain works to a semi-public company formed specifically for the purpose of providing that service and possessing a single corporate purpose, the private participant in the company being selected by means of a public and open procedure after verification of the financial, technical, operational and management requirements specific to the service to be performed and of the characteristics of the tender with regard to the service to be delivered, provided that the tendering procedure in question is consistent with the principles of free competition, transparency and equal treatment laid down by the Treaty with regard to concessions.

The use of a double procedure for, first, the selection of the private participant in the semi-private company and, second, the award of the concession to that company, would be liable to deter private entities and public authorities from forming institutionalised public-private partnerships, on account of the length of time involved in implementing such procedures and the legal uncertainty attaching to the award of the concession to the previously selected private participant.

While the absence of a competitive tendering procedure in connection with the award of services would appear to be irreconcilable with Articles 43 EC and 49 EC and with the principles of equal treatment and non-discrimination, that situation may be rectified by selecting the private participant in accordance with those requirements and choosing appropriate criteria for the selection of the private participant, since the tenderers must provide evidence not only of their capacity to become a shareholder but, primarily, of their technical capacity to provide the service and the economic and other advantages which their tender brings.

In so far as the criteria for the selection of the private participant are based not only on its capital contribution but also the participant’s technical capacity and the characteristics of its tender with regard to the particular services to be provided and the participant is entrusted with the operation of the service in question and thus with the management of the service, the selection of the concessionaire can be regarded as an indirect result of the selection of that participant which was made at the conclusion of a procedure conducted in accordance with the principles of Community law, so that a second competitive tendering procedure for the selection of the concessionaire is unnecessary.

(see paras 59-61, operative part)

JUDGMENT OF THE COURT (Third Chamber)

15 October 2009 (*)

(Articles 43 EC, 49 EC and 86 EC – Award of public contracts – Award of water service to a semi-private company – Competitive procedure – Appointment of the private partner responsible for operating the service – Award made without regard to the rules governing the award of public contracts)

In Case C‑196/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale della Sicilia (Italy), made by decision of 13 March 2008, received at the Court on 14 May 2008, in the proceedings

Acoset SpA

v

Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa,

Provincia Regionale di Ragusa,

Comune di Acate (RG),

Comune di Chiaramonte Gulfi (RG),

Comune di Comiso (RG),

Comune di Giarratana (RG),

Comune di Ispica (RG),

Comune di Modica (RG),

Comune di Monterosso Almo (RG),

Comune di Pozzallo (RG),

Comune di Ragusa,

Comune di Santa Croce Camerina (RG),

Comune di Scicli (RG),

Comune di Vittoria (RG),

intervening parties:

Saceccav Depurazioni Sacede SpA,

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues (Rapporteur), President of the Second Chamber, acting as President of the Third Chamber, P. Lindh, A. Rosas, U. Lõhmus and A. Ó Caoimh, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 April 2009,

after considering the observations submitted on behalf of:

– Acoset SpA, by A. Scuderi and G. Bonaventura, avvocati,

– Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa and others, by N. Gentile, avvocato,

– Comune di Vittoria (RG), by A. Bruno and C. Giurdanella, avvocati,

– the Italian Government, by R. Adam, acting as Agent, and G. Fiengo, avvocato dello Stato,

– the Austrian Government, by M. Fruhmann, acting as Agent,

– the Polish Government, by M. Dowgielewicz, acting as Agent,

– the Commission of the European Communities, by C. Zadra and D. Kukovec, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 June 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 43 EC, 49 EC and 86 EC.

2 The reference was made in proceedings between Acoset SpA (‘Acoset’) and the Conferenza Sindaci e Presidenza Prov. Reg. Ragusa (Conference of Mayors and of the President of the Regional Province of Ragusa, ‘the Conferenza’) and others concerning the cancellation by the Conferenza of the tendering procedure for the selection of the private minority participant in the semi-public company which was directly awarded the integrated water service (‘servizio idrico integrato’) for the province of Ragusa.

Legal context

Community legislation

Directive 2004/18

3 Article 1 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) provides as follows:

‘…

2. (a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.

...

(d) “Public service contracts” are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

…

4. “Service concession” is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.

…’

4 Article 3 of Directive 2004/18 is worded as follows:

‘Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.’

5 Article 7 of the directive provides as follows:

‘This Directive shall apply to public contracts … which have a value exclusive of value added tax (VAT) estimated to be equal to or greater than the following thresholds:

…

(b) EUR 249 000:

– for public supply and service contracts awarded by contracting authorities other than those listed in Annex IV [“central government authorities”],

…’

6 Commission Regulation (EC) No 2083/2005 of 19 December 2005 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJ 2005 L 333, p. 28) amended Article 7(b) of Directive 2004/18 in the version resulting from Commission Regulation (EC) No 1874/2004 of 28 October 2004 (OJ 2004 L 326, p. 17) by replacing the amount of EUR 236 000 with that of EUR 211 000 for the period from 1 January 2006 to 1 January 2007.

7 In accordance with Article 2 of Commission Regulation (EC) No 1422/2007 of 4 December 2007 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJ 2007 L 317, p. 34), that amount was EUR 206 000 with effect from 1 January 2008.

8 Article 17 of Directive 2004/18 provides as follows:

‘Without prejudice to the application of Article 3, this Directive shall not apply to service concessions as defined in Article 1(4).’

9 Article 21 of Directive 2004/18 is worded as follows:

‘Contracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4).’

10 ‘Other services’ fall within category 27 of Annex II B to that directive, with the exception of employment contracts, contracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts for broadcasting time.

Directive 2004/17

11 Article 1(2) and (3) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) provides as follows:

‘2. …

(b) “Works...