Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia.

• Jurisdiction: European Union
• Celex Number: 61998CC0107
• ECLI: ECLI:EU:C:1999:344
• Date: 01 July 1999
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-107/98

Important legal notice

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61998C0107

Opinion of Mr Advocate General Cosmas delivered on 1 July 1999. - Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia. - Reference for a preliminary ruling: Tribunale amministrativo regionale per l'Emilia-Romagna - Italy. - Public service and public supply contracts - Directives 92/50/EEC and 93/36/EEC - Award by a local authority of a contract for the supply of products and provision of specified services to a consortium of which it is a member. - Case C-107/98.

European Court reports 1999 Page I-08121

Opinion of the Advocate-General

I - Introduction

1 In this case the Tribunale Amministrativo Regionale per l'Emilia-Romagna, Sezione di Parma (Regional Administrative Court for Emilia-Romagna, Parma Division) has referred to the Court of Justice for a preliminary ruling a question on the interpretation of a provision of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts. (1)

II - Community legal context

2 Article 1(a) of Directive 92/50 provides that, for the purposes of that directive, `public service contracts' are `contracts for pecuniary interest concluded in writing between a service provider and a contracting authority'. Article 1(b) provides that the term `contracting authorities' means `the State, regional or local authorities, bodies governed by public law, [and] associations formed by one or more of such authorities or bodies governed by public law'.

3 Article 2 of Directive 92/50 states that `if a public contract is intended to cover both products within the meaning of Directive 77/62/EEC and services within the meaning of Annexes I A and I B to this Directive, it shall fall within the scope of this Directive if the value of the services in question exceeds that of the products covered by the contract'.

4 Article 6 of Directive 92/50 provides that the directive `shall not apply to public service contracts awarded to an entity which is itself a contracting authority within the meaning of Article 1(b) on the basis of an exclusive right which it enjoys pursuant to a published law, regulation or administrative provision which is compatible with the Treaty'.

5 Article 7 of Directive 92/50 provides that the directive is to apply to public service contracts the estimated value of which, net of VAT, is not less than ECU 200 000 and sets out the basis on which, in the case of contracts which do not specify a total price, the estimated contract value is to be estimated. (2)

6 As indicated by its title, Council Directive 93/36/EEC of 14 June 1993 concerns the coordination of procedures for the award of public supply contracts. (3) This directive repealed the previously applicable Council Directive 77/62/EEC of 21 December 1976. (4) However, Article 33 of Directive 93/36 states: `Reference to the repealed [directive] shall be construed as reference to this Directive and should be read in accordance with the correlation table set out in Annex VI'.

7 Article 1(a) of Directive 93/36 provides that, for the purposes of that directive, `public supply contracts' are `contracts for pecuniary interest concluded in writing involving the purchase, lease[,] rental or hire purchase, with or without option to buy, of products between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below. The delivery of such products may in addition include siting and installation operations'.

8 Article 1(b) provides that `contracting authorities' are `the State, regional or local authorities, bodies governed by public law, [and] associations formed by one or several of such authorities or bodies governed by public law'. (5)

9 Article 5(1)(a) of Directive 93/36 states, so far as is relevant to the point at issue here, that its provisions (6) apply to public supply contracts `awarded by the contracting authorities referred to in Article 1(b) ... in so far as the products not covered by Annex II are concerned, provided that the estimated value net of VAT is not less than ECU 200 000'.

10 Article 5(2), (3) and (5) specifies the method for calculating the estimated contract value. (7)

III - National legal context

A - Italian Law No 142/90

11 Under Article 22(1) of Italian Law No 142 of 8 June 1990 on the organisation of local authorities, (8) municipalities are to provide for the management of public services involving the production of goods and the performance of activities designed to achieve social purposes and promote economic and civil development of local communities. In accordance with Article 22(3), municipalities may ensure the provision of such local public services in various ways: on a work-and-materials basis, by way of concession to third parties, or using special undertakings, institutions or semi-public companies in which they hold shares.

12 Article 23 of Law No 142/90, which defines special undertakings and non-profit-making institutions, provides (in Article 23(1)) that a special undertaking is a body (ente strumentale) established by a regional or local authority, having legal personality, commercial autonomy and its own statutes as approved by the municipal or provincial council. Article 23(3) provides that the organs of such undertakings and institutions are to be a board of management, a chairman and a director who assumes managerial responsibility, detailed arrangements for appointment and removal of members of the board of management being laid down by the statutes of the regional or local authority. In addition, in performing their activities such undertakings and institutions must, under Article 23(4), meet criteria of effectiveness, efficiency and profitability; they must achieve a balanced budget by balancing costs and receipts, including transfers. Lastly, in accordance with Article 23(6) the local administration is to provide the start-up capital, define objectives and policy, approve the documents of constitution, exercise supervision, monitor management results and cover any social costs which may arise.

13 Article 25 of Law No 142/90 makes express provision for the joint management of one or more services through the creation of consortia, in accordance with the provisions on special undertakings laid down in Article 23. For that purpose, each municipal council must approve, by absolute majority, a consortium agreement and at the same time the statutes of the consortium (consorzio). The general meeting of the consortium is to be composed of the representatives of its member entities (the mayor, the council chairman or their deputies). The general meeting elects the board of management and approves the documents of constitution prescribed by the statutes.

B - AGAC

14 Azienda Gas-Acqua Consorziale (`AGAC') is a consortium set up by a number of municipalities in the province of Reggio Emilia to manage energy and environmental services, pursuant to Article 25 of Law No 142/90. Under Article 1 of its statutes (`the Statutes'), it has legal personality and operational autonomy.

15 Article 3(1) of the Statutes states that the object of AGAC is to assume direct responsibility for, and manage, the public services listed, which include the production and distribution of methane gas and heating for civil and industrial purposes. Article 3(2) provides that AGAC may extend its activities to other related or ancillary services. Under Article 3(3) it may create, or hold shares or have interests in, public or private companies or public bodies (enti) for the management of related or ancillary activities. Under Article 3(4) the consortium may provide the abovementioned services to municipalities, private persons or public bodies which do not belong to the consortium.

16 Articles 9, 10 and 11 of the Statutes specify, among other things, the percentage participation of each member municipality in the general meeting of the consortium, and in the consortium's profits and losses. In accordance with Article 10(3), the percentage participation of the Municipality of Viano is set at 0.9%.

17 Under Articles 12 and 13 of the Statutes, the most important managerial acts, which include preparation of budgets and accounts, must be approved by the general meeting of the consortium, which is composed of representatives of the member municipalities. (9)

18 Article 25 of the Statutes, entitled `Management criteria', provides that AGAC must achieve a balanced budget and operational profitability.

19 In accordance with Article 27, the municipalities provide AGAC with funds and assets, in respect of which it pays them annual interest.

20 Pursuant to Article 28, any profits in a given financial year may be allocated to various purposes as decided by the general meeting: in particular, they may be distributed between the member municipalities of the consortium, retained by the consortium to establish or increase reserve funds or reinvested in other AGAC activities.

21 Under Article 29, where a loss occurs the financial deficit may be corrected through, in particular, the injection of new capital by the municipalities.

IV - The facts and the question referred for a preliminary ruling

22 By its Decision No 18 of 24 May 1997 (`the Decision'), the Municipal Council of Viano entrusted to AGAC management of the heating installations of a number of municipal buildings and the supply of the necessary fuel. It also made the consortium responsible for carrying out improvements to heating installations located in the buildings in question. (10) It did not, however, issue any invitation to tender to interested businesses.

23 AGAC's remuneration was fixed at ITL 122 million for the period from 1 June 1997 to 31 May 1998. The value of the fuels to be supplied represented ITL 86 million while that of management and maintenance of the installations represented ITL 36 million.

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