The Queen v H.M. Treasury, ex parte The University of Cambridge.

• Jurisdiction: European Union
• Celex Number: 61998CJ0380
• ECLI: ECLI:EU:C:2000:529
• Docket Number: C-380/98
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 03 October 2000

Judgment of the Court (Fifth Chamber) of 3 October 2000. - The Queen v H.M. Treasury, ex parte The University of Cambridge. - Reference for a preliminary ruling: High Court of Justice (England & Wales), Queen's Bench Division (Divisional Court) - United Kingdom. - Public contracts - Procedure for the award of public contracts for services, supplies and works - Contracting authority - Body governed by public law. - Case C-380/98.

European Court reports 2000 Page I-08035

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Approximation of laws - Procedures for the award of public service contracts, public supply contracts, and public works contracts - Directives 92/50, 93/36 and 93/37 - Contracting authorities - Bodies governed by public law - Financed by the State - Definition - Research awards and grants, student grants - Included - Payments made for the provision of services - Excluded - Activity financed for the major part by the State - Definition - Percentage of public financing - Assessment

(Council Directives 92/50, Art. 1(b), second subpara., third indent, 93/36, Art. 1(b), second subpara., third indent, and 93/37, Art. 1(b), second subpara., third indent)

2. Approximation of laws - Public procurement procedures - Services, supplies, works - Contracting authorities - Bodies governed by public law - Financed by the State - Definition - Percentage of public financing - Reference period - Determination

(Council Directives 92/50, Art. 1(b), second subpara., third indent, 93/36, Art. 1(b), second subpara., third indent, and 93/37, Art. 1(b), second subpara., third indent)

Summary

1. Article 1(b) of Directives 92/50 relating to the coordination of procedures for the award of public service contracts, 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts provides, in its first subparagraph, that contracting authorities covers inter alia, bodies governed by public law, and in its second subparagraph, that a body governed by public law means any body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character (first indent), having legal personality (second indent) and financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law (third indent).

In the third indent, the expression financed ... by [one or more contracting authorities] , properly construed, includes awards or grants paid by one or more contracting authorities for the support of research work and student grants paid by local education authorities to universities in respect of tuition for named students. Payments made by one or more contracting authorities either in the context of a contract for services comprising research work or as consideration for other services such as consultancy or the organisation of conferences do not, by contrast, constitute public financing within the meaning of those directives.

On a proper construction, the term for the most part in Article 1(b), second subparagraph, third indent, cited above, means more than half.

In order to determine correctly the percentage of public financing of a particular body, account must be taken of all of its income, including that which results from a commercial activity.

( see paras 26, 33, 36, and operative part 1-3 )

2. The decision as to whether a body such as a university is a contracting authority within the meaning of Article 1(b) of Directives 92/50 relating to the coordination of procedures for the award of public service contracts, 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts must be made annually and the budgetary year in which the procurement procedure commences must be regarded as the most appropriate period for calculating the way in which that body is financed, so that the calculation must be made on the basis of the figures available at the beginning of the budgetary year, even if they are provisional. A body which constitutes a contracting authority for the purposes of the above directives when a procurement procedure commences remains, as far as that procurement is concerned, subject to the requirements of those directives until such time as the relevant procedure has been completed.

( see para. 44, and operative part 4 )

Parties

In Case C-380/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court), for a preliminary ruling in the proceedings pending before that court between

The Queen

and

H.M. Treasury,

ex parte: University of Cambridge,

on the interpretation of Article 1 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), Article 1 of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Article 1 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54),

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, President of the Chamber, P.J.G. Kapteyn (Rapporteur), A. La Pergola, P. Jann and H. Ragnemalm, Judges,

Advocate General: S. Alber,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the University of Cambridge, by D. Vaughan QC, A. Robertson, Barrister, and G. Godar, Solicitor,

- the United Kingdom Government, by M. Ewing, of the Treasury Solicitor's Department, acting as Agent, and K. Parker QC,

- the Netherlands Government, by M.A. Fierstra, Head of the European Law Department at the Ministry of Foreign Affairs, acting as Agent,

- the Austrian Government, by W. Okresek, Departmental Head at the Chancellor's Office, acting as Agent,

- the Commission of the European Communities, by R. Wainwright, Principal Legal Adviser, and M. Shotter, a national civil servant on secondment to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the University of Cambridge, represented by D. Vaughan and A. Robertson, the United Kingdom Government, represented by G. Amodeo, of the Treasury Solicitor's Department, acting as Agent, and R. Williams, Barrister, the French Government, represented by G. Taillandier, rédacteur in the Legal Affairs Department of the Ministry of Foreign Affairs, acting as Agent, the Austrian Government, represented by M. Winkler, of the Chancellor's Office, acting as Agent, and the Commission, represented by R. Wainwright and M. Shotter, at the hearing on 9 March 2000,

after hearing the Opinion of the Advocate General at the sitting on 11 May 2000,

gives the following

Judgment

Grounds

1 By order of 21 July...