Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG.

• Jurisdiction: European Union
• Celex Number: 62003CC0458
• ECLI: ECLI:EU:C:2005:123
• Date: 01 March 2005
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-458/03

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 1 March 2005 (1)

Case C-458/03

Parking Brixen GmbH

(Reference for a preliminary ruling from the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, Italy)

(Public procurement – Directive 92/50/EEC – Distinction between public service contracts and concession contracts – Distinction between awards to third parties and ‘in-house operations’ – Management of a pay car park by a subsidiary of the contracting authority)

I – Introduction

1. One of the key questions in public procurement law is the distinction between award transactions which are subject to a compulsory call for tenders and those which are not. Particularly topical in this connection is the differentiation between the award of contracts to third parties and internal procurement operations, also referred to as ‘in-house operations’.

2. In-house operations stricto sensu are transactions in which a body governed by public law awards a contract to one of its departments which does not have its own legal personality. Largo sensu, however, in-house operations may also include certain situations in which contracting authorities conclude contracts with companies controlled by them which do have their own legal personality. Whereas in-house operations stricto sensu are by definition irrelevant for the purposes of procurement law, since they involve transactions wholly internal to the administration, (2) in-house operations largo sensu (sometimes called ‘quasi-in-house operations’ (3)) frequently raise the difficult question whether or not there is a requirement to put them out to tender. That is the issue with which the Court is concerned once again (4) in this case.

3. The Municipality of Brixen awarded the management of two public pay car parks to its subsidiary Stadtwerke Brixen AG without first carrying out an award procedure. The private company Parking Brixen GmbH challenged that award. An Italian court, the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen (Administrative Court, Autonomous Division for the Province of Bolzano) (hereinafter also called ‘the referring court’), has referred to the Court for a preliminary ruling two questions which relate essentially to the distinction between public service concessions and public service contracts, and the distinction between external awards subject to a compulsory call for tenders and in-house operations not subject to a compulsory call for tenders.

II – Relevant legislation

A – Community law

4. The Community legislation relevant to this case comprises Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (5) (hereinafter ‘Directive 92/50’) and Articles 43 EC, 49 EC and 86(1) EC.

5. Article 1(a) and (b) of Directive 92/50 reads as follows:

‘For the purposes of this Directive:

(a) ‘public service contracts’ shall mean contracts for pecuniary interest concluded in writing between a service provider and a contracting authority, ...;

(b) ‘contracting authorities’ shall mean the State, regional or local authorities, bodies governed by public law, associations formed by one or more of such authorities or bodies governed by public law;

...’.

6. Article 43 EC establishes the freedom of establishment and Article 49 EC the freedom to provide services. Under the first paragraph of Article 48 EC and Article 55 EC, companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community are, for the purposes of those freedoms, to be treated in the same way as natural persons who are nationals of Member States.

7. Finally, Article 86(1) and (2) EC provides as follows:

‘1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89.

2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.’

B – National law

8. In Italy, Article 115(1) of Decreto Legislativo (6) No 267 of the President of the Republic of 18 August 2000 (hereinafter, ‘Decree-Law 267/2000’) (7) allows municipalities and other local authorities to convert their dedicated undertakings (also known as ‘special undertakings’), by means of a unilateral legal transaction, into public limited companies. In those circumstances, the companies in question retain the rights and obligations obtaining prior to the conversion and take over the assets and liabilities of the original special undertakings. Under that provision, the local authority concerned may continue to be the sole shareholder in such a company, albeit for no more than two years following the conversion.

9. Article 88(6) of the consolidated text of the provisions concerning local government of the Autonomous Region of Trentino-South Tyrol (hereinafter, ‘the provisions concerning local government’) provides:

‘Municipalities shall by regulations establish the procedures and selection criteria for the forms of organisation set forth hereunder for the management of public services of economic and commercial importance:

(a) Formation of special undertakings;

(b) Formation of, or participation in, public or private limited companies, under predominantly public local influence;

(c) Entrusting the management of public services to third parties, in which case suitable procedures for their being put out to competition must be laid down. ...’. (8)

10. Also, Article 88(18) of the provisions concerning local government provides that local authorities with holdings in companies formed under Article 6 may – subject to certain conditions defined in greater detail in paragraph 18 – entrust such companies with the management of other public services which are compatible with the objectives of the company.

III – Facts

Facts and main proceedings

11. In 2001 and 2002, the Municipality of Brixen, situated in the Italian Autonomous Region of Trentino-South Tyrol, transferred the management of two public car parks to Stadtwerke Brixen AG, in each case without a prior award procedure. Both car parks belong to the municipal public swimming baths, the construction and management of which had already been transferred to Stadtwerke Brixen in 2000. As became clear at the hearing, however, those car parks are not used exclusively by patrons of the swimming baths.

12. According to the information supplied by the referring court, those car parks are situated on two different plots of land bearing numbers 491/6 and 491/11.

13. With respect to plot 491/11, in December 2001, the municipality granted (9) Stadtwerke Brixen AG an overground and underground building right for the construction of a car park. Pending completion of the planned underground car park, provision was made for a temporary overground car park. To that end, the land in question (which had previously been a football field) was temporarily surfaced and converted into a car park with approximately 200 spaces.

14. In order to provide additional parking, management of the neighbouring overground car park on plot 491/6 was also transferred to Stadtwerke Brixen AG in November 2002 for a period of nine months. (10) That car park, which likewise comprised some 200 spaces, had previously been administered directly by the Municipality of Brixen for 10 years.

15. Under an agreement concluded with the Municipality of Brixen on 19 December 2002, Stadtwerke Brixen AG is permitted to charge patrons a fee for using the latter car park, situated on plot 491/6. In return, it undertook to pay the municipality annual compensation in the amount of EUR 151 700, which is to increase proportionately if the parking fee is raised. (11) In addition, Stadtwerke Brixen AG continued to employ the car park operating staff formerly employed by the Municipality of Brixen, undertook to ensure the routine and non-routine upkeep of the site and assumed full liability in this regard. Stadtwerke Brixen AG also stated that it was willing to carry on the cycle hire service which the Municipality of Brixen had previously operated from the car park and to allow the weekly market to continue to be held there.

16. According to the information supplied by the referring court, no such agreement was concluded, however, with respect to use of the overground car park on plot 491/11.

17. The award of the car park management contract to Stadtwerke Brixen AG is challenged by Parking Brixen GmbH, which already operates a multi-storey car park at another location in Brixen and is itself interested in managing the two car parks at issue here. On 17 January 2003, it brought a ‘Rekurs’ (appeal) before the referring court and seeks the annulment of the legal transactions by which the award was effected.

Additional information on Stadtwerke Brixen AG and the former dedicated undertaking

18. Stadtwerke Brixen AG is the legal successor to Stadtwerke Brixen, formerly a dedicated undertaking (also called a ‘special undertaking’) of the Municipality of Brixen. As a dedicated undertaking, it had had legal personality and commercial independence since 1 January 1999 and was converted by the municipality into a public limited company, Stadtwerke Brixen AG, under Article 115 of Legislative Decree 267/2000 in October 2001. (12)

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