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

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 18 November 1999

Avis juridique important

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61998J0107

Judgment of the Court (Fifth Chamber) of 18 November 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

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Preliminary rulings - Jurisdiction of the Court - Extraction of the relevant points of Community law - Jurisdiction of the national courts - Application of provisions as interpreted

(EC Treaty, Art. 177 (now Art. 234 EC))

2 Approximation of laws - Procedures for the award of public supply contracts - Directive 93/36 - Scope - Contracts awarded by a contracting authority to a distinct and independent body - Covered - Where the successful tenderer is itself a contracting authority - Irrelevant

(Council Directives 92/50, Art. 6, and 93/36)

Summary

1 Where, under the procedure provided for by Article 177 of the Treaty (now Article 234 EC), questions are formulated imprecisely, the Court may extract - from all the information provided by the national court and from the documents concerning the main proceedings - the points of Community law requiring interpretation, having regard to the subject-matter of the dispute. In order to provide the national court with a satisfactory answer, the Court may deem it necessary to consider provisions of Community law which the national court has not mentioned in its question. On the other hand, by virtue of the division of functions provided for under the above provision, it is for the national court to apply the rules of Community law, as interpreted by the Court, to a specific case. No such application is possible without a comprehensive appraisal of the facts of the case.

2 Directive 93/36 coordinating procedures for the award of public supply contracts is applicable in cases 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 - which is not the position where the local authority exercises over a legally distinct person a form of control similar to that exercised over its own departments and, at the same time, the person carries out the essential part of its activities together with the controlling local authority or authorities - a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority.

The only permitted exceptions to the application of Directive 93/36 are those which are exhaustively and expressly mentioned therein. That Directive does not contain any provision comparable with Article 6 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which excludes from its scope public contracts awarded, under certain conditions, to contracting authorities.

Parties

In Case C-107/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Tribunale Amministrativo Regionale per l'Emilia-Romagna, Italy, for a preliminary ruling in the proceedings pending before that court between

Teckal Srl

and

Comune di Viano, Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia

on the interpretation of Article 6 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1),

THE COURT

(Fifth Chamber),

composed of: D.A.O. Edward, President of the Chamber, L. Sevón, J.-P. Puissochet, P. Jann (Rapporteur) and M. Wathelet, Judges,

Advocate General: G. Cosmas,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Teckal Srl, by A. Soncini and F. Soncini, of the Parma Bar, and P. Adami, of the Rome Bar,

- Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia, by E.G. Di Fava, of the Reggio d'Emilia Bar, and G. Cugurra, of the Parma Bar,

- the Italian Government, by Professor U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by P.G. Ferri, Avvocato dello Stato,

- the Belgian Government, by J. Devadder, General Adviser in the Legal Service of the Ministry of Foreign Affairs, External Trade and Development Cooperation, acting as Agent,

- the Austrian Government, by W. Okresek, Sektionschef in the Federal Chancellor's Office, acting as Agent,

- the Commission of the European Communities, by P. Stancanelli, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Teckal Srl, represented by A. Soncini and P. Adami; Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia, represented by G. Cugurra; the Italian Government, represented by P.G. Ferri; the French Government, represented by A. Bréville-Viéville, Chargé de Mission in the Legal Directorate of the Ministry of Foreign Affairs, acting as Agent; and the Commission, represented by P. Stancanelli, at the hearing on 6 May 1999,

after hearing the Opinion of the Advocate General at the sitting on 1 July 1999,

gives the following

Judgment

Grounds

1 By order of 10 March 1998, received at the Court on 14 April 1998, the Tribunale Amministrativo Regionale per l'Emilia-Romagna (Regional Administrative Court for Emilia Romagna) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Article 6 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p...