Telaustria Verlags GmbH y Telefonadress GmbH contra Telekom Austria AG, con intervención de: Herold Business Data AG.

• Jurisdiction: European Union
• Celex Number: 61998CJ0324
• ECLI: ECLI:EU:C:2000:669
• Date: 07 December 2000
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-324/98

Avis juridique important

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61998J0324

Judgment of the Court (Sixth Chamber) of 7 December 2000. - Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG, joined party: Herold Business Data AG. - Reference for a preliminary ruling: Bundesvergabeamt - Austria. - Public service contracts - Directive 92/50/EEC - Public service contracts in the telecommunications sector - Directive 93/38/EEC - Public service concession. - Case C-324/98.

European Court reports 2000 Page I-10745

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

Approximation of laws Public procurement procedures of entities operating in the water, energy, transport and telecommunications sectors Directive 93/38 Scope Contract for pecuniary interest concluded in writing between a contracting authority and a private undertaking for the provision of public telecommunication services Included Consideration consisting in an exploitation right Excluded Obligations of the contracting entities

(Council Directive 93/38)

Summary

$$Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors covers a contract for pecuniary interest concluded in writing between, on the one hand, an undertaking which is specifically responsible under the legislation of a Member State for operating a telecommunications service and whose capital is wholly held by the public authorities of that State and, on the other, a private undertaking, where under that contract the first undertaking entrusts the second with the production and publication, for the purpose of distribution to the public, of printed and electronically accessible lists of telephone subscribers (telephone directories).

However, although it is covered by Directive 93/38, such a contract is excluded, under Community law as it stands at present, from the scope of that directive by reason of the fact, in particular, that the consideration provided by the first undertaking to the second consists in the second obtaining the right to exploit for payment its own service.

Notwithstanding the fact that, as Community law stands at present, such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular, that principle implying, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with.

That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.

It is for the national court to rule on the question whether that obligation was complied with in the case in the main proceedings and also to assess the materiality of the evidence produced to that effect.

( see paras 58, 60-63, and operative parts 1-4 )

Parties

In Case C-324/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Bundesvergabeamt, Austria, for a preliminary ruling in the proceedings pending before that court between

Telaustria Verlags GmbH,

Telefonadress GmbH

and

Telekom Austria AG, formerly Post & Telekom Austria AG,

joined party:

Herold Business Data AG,

on the interpretation 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) and of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84),

THE COURT (Sixth Chamber),

composed of: V. Skouris (Rapporteur), President of the Second Chamber, acting as President of the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges,

Advocate General: N. Fennelly,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

Telaustria Verlags GmbH, by F.J. Heidinger, Rechtsanwalt, Vienna,

Telekom Austria AG, by C. Kerres and G. Diwok, Rechtsanwälte, Vienna,

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

the Danish Government, by J. Molde, Head of Division in the Ministry of Foreign Affairs, acting as Agent,

the French Government, by K. Rispal-Bellanger, Head of Subdirectorate at the Legal Affairs Directorate of the Ministry of Foreign Affairs, and A. Bréville-Viéville, Chargé de Mission in the same directorate, acting as Agents,

the Netherlands Government, by M.A. Fierstra, Deputy Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

the Commission of the European Communities, by M. Nolin and J. Schieferer, of its Legal Service, acting as Agents, assisted by R. Roniger, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Telaustria Verlags GmbH, represented by F.J. Heidinger; of Telekom Austria AG, represented by C. Kerres, P. Asenbauer, and M. Gregory, Director of Commercial Law in the office of the Legal Service of Telekom Austria AG, acting as Agent; of Herold Business Data AG, represented by T. Schirmer, Rechtsanwalt, Vienna; of the Austrian Government, represented by M. Fruhmann, of the Federal Chancellor's Office, acting as Agent; of the French Government, represented by S. Pailler, Chargé de Mission in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent; and of the Commission, represented by M. Nolin, assisted by R. Roniger, at the hearing on 23 March 2000,

after hearing the Opinion of the Advocate General at the sitting on 18 May 2000,

gives the following

Judgment

Grounds

1 By order of 23 April 1998, received at the Court on 26 August 1998, the Bundesvergabeamt (Federal Procurement Office) referred for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) seven questions on the interpretation 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) and of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

2 Those questions have been raised in proceedings between Telaustria Verlags GmbH (Telaustria) and Telefonadress GmbH (Telefonadress), on the one hand, and Telekom Austria AG (Telekom Austria), on the other, concerning the conclusion by Telekom Austria of a concession contract with Herold Business Data AG (Herold) for the production and publication of printed and electronically accessible lists of telephone subscribers (telephone directories).

Legislative framework

Community legislation

Directive 92/50

3 Article 1 of Directive 92/50 states:

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, to the exclusion of:

....

4 The eighth recital in the preamble to Directive 92/50 states:

... the provision of services is covered by this directive only in so far as it is based on contracts; ... the provision of services on other bases, such as law or regulations, or employment contracts, is not covered.

5 Furthermore, the 17th recital in the preamble to Directive 92/50 states:

... the rules concerning service contracts as contained in Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [OJ 1990 L 297, p. 1] should remain unaffected by this directive.

Directive 93/38

6 Under Article 45(3) of Directive 93/38, Directive 90/531 is to cease to have effect as from the date on which Directive 93/38 is applied. Article 45(4) states, moreover, that references to Directive 90/531 are to be construed as referring to Directive 93/38.

7 Under the 24th recital in the preamble to Directive 93/38:

... the provision of services is covered by this directive only in so far as it is based on contracts; ... the provision of services on other bases, such as law, regulations or administrative provisions or employment contracts, is not covered.

8 Article 1(2) of Directive 93/38 defines public undertaking as any undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. A dominant influence on the part of the public authorities shall be presumed when these authorities, directly or indirectly, in relation to an undertaking:

hold the majority of the undertaking's subscribed capital ....

9 Article 1(4) of Directive 93/38 defines supply, works and service contracts as contracts for pecuniary interest concluded in writing between one of the contracting entities referred to in Article 2, and a supplier, a contractor or a service provider, having as their object:

(a) in the case of supply contracts ...

(b) in the case of works contracts ...

(c) in the case of service contracts, any object other than those referred to in (a) and (b) and to the exclusion of:

....

10 The last indent of Article 1(4) thereof states:

Contracts which include the provision of services and supplies shall be regarded as supply contracts if the total value of supplies is greater than the value of the services covered by the contract.

11 Furthermore, Article 1(15) of Directive 93/38...