OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 21 April 2005 (1)
Case C-174/03
Impresa Portuale di Cagliari Srl
v
Tirrenia di Navigazione SpA
1.In this case the Tribunale amministrativo per la Sardegna (the Administrative Court for Sardinia) has referred to the Court two questions concerning the interpretation 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.(2)
2.First, the national court seeks clarification on how to categorise, for the purposes of Directive 93/38, an entity whose activities are carried out partly subject to competition and partly under a de facto monopoly.
3.Then, depending on the answer to that question, it wishes to know whether the technical specifications mentioned in Article 18 of Directive 93/38 must be laid down before the selection of the successful bidder and whether they must be publicised.
The Directive
4.In so far as is relevant, the aims of Directive 93/38 are explained as follows in the preamble.
5.Recitals 11 and 12 state that the main reasons for which entities operating in the sectors concerned do not purchase on the basis of Community-wide competition are ‘the closed nature of the markets in which they operate, due to the existence of special or exclusive rights granted by the national authorities’ and the ‘various ways in which national authorities can influence the behaviour of these entities, including participations in their capital and representation in the entities’ administrative, managerial or supervisory bodies’.
6.As regards scope, recital 13 states that ‘this Directive should not extend to activities of those entities which either fall outside the sectors [concerned], or which fall within those sectors but are nevertheless directly exposed to competitive forces in markets to which entry is unrestricted’.
7.With regard to the existence of competition in certain areas, recitals 18 and 19 state respectively that, in view of the various Community legal acts designed to introduce more competition between the entities offering air transport services to the public, it is ‘not appropriate for the time being to include such entities in the scope of this Directive although the situation ought to be reviewed at a later stage in the light of progress made as regards competition’, and that, ‘in view of the competitive position of Community shipping, it would be inappropriate for the greater part of the contracts in this sector to be subject to detailed procedures; … the situation of shippers operating sea-going ferries should be kept under review; [and] certain inshore and river ferry services operated by public authorities should no longer be excluded from the scope of Directives 71/305/EEC and 77/62/EEC’.(3)
8.Article 1(1) states that for the purposes of Directive 93/38 ‘“public authorities” shall mean the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authorities or bodies governed by public law. A body is considered to be governed by public law where it:
–is established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial nature,
–has legal personality, and
–is financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or is subject to management supervision by those bodies, or has an administrative, managerial or supervisory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law’.
9.Article 2 defines the scope of the Directive. Article 2(1)(a) states that it shall apply ‘to contracting entities which are public authorities or public undertakings and exercise one of the activities referred to in paragraph 2’; Article 2(1)(b) adds entities which ‘have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State’.
10.Article 2(2) sets out the relevant activities for the purposes of the Directive. Shipping is not mentioned among those activities.
11.Article 2(2)(b)(ii) defines as one of the relevant activities the exploitation of a geographical area for the purpose of the provision of airport, maritime or inland port or other terminal facilities to carriers by air, sea or inland waterway.
12.Article 2(2)(c) defines as a relevant activity the operation of networks providing a public transport service by, inter alia, bus. However, Article 2(4) states that ‘the provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition[s] as the contracting entities’.
13.Article 2(2)(d) defines as a relevant activity the provision or operation of public telecommunications networks or the provision of public telecommunications services. However, Article 8(1) states that ‘this Directive shall not apply to contracts which contracting entities exercising an activity described in Article 2(2)(d) award for purchases intended exclusively to enable them to provide one or more telecommunications services where other entities are free to offer the same services in the same geographical area and under substantially the same conditions’.
14.Article 16 provides that ‘contracts which have as their object services listed in Annex XVI B shall be awarded in accordance with Articles 18 and 24’. That list includes, in category 20, ‘supporting and auxiliary transport services’.
15.Article 18 governs the use of technical specifications in contract award procedures under the directive. Article 18(1) requires contracting entities to include the technical specifications in the general documents or the contract documents relating to each contract. No other publicity requirement prior to the award is imposed by that provision. Other paragraphs of Article 18 lay down requirements which are intended, in essence, to avoid the discriminatory use of technical specifications by contracting authorities.
16.Technical specifications are defined in Article 1(8) as ‘the technical requirements contained in particular in the tender documents, defining the characteristics of a set of works, material, product, supply or service, and enabling a piece of work, a material, a product, a supply or a service to be objectively described in a manner such that it fulfils the use for which it is intended by the contracting entity’.
17.Pursuant to Article 19(1): ‘Contracting entities shall make available on request to suppliers, contractors or service providers interested in obtaining a contract the technical specifications regularly referred to in their supply, works or service contracts or the technical specifications which they intend to apply to contracts covered by periodic information notices within the meaning of Article 22.’ Article 19(2) provides that ‘where such technical specifications are based on documents available to interested suppliers, contractors or service providers, a reference to those documents shall be sufficient’.
18.Article 24 requires contracting entities which have awarded a contract to communicate to the Commission the results of the awarding procedure by means of a notice drawn up in accordance with the relevant Annexes of the directive.
The national proceedings and the questions referred
19.Impresa Portuale di Cagliari Srl, the applicant in the main proceedings (‘the applicant’), is a company carrying on business in the Port of Cagliari, Italy. Its activities include the loading, unloading, transhipment, storage and general movement of goods and equipment transported on ships.
20.Before the national court the applicant has challenged the validity of a two-year private agreement by which, without following the award procedures contained in Directive 93/38, Tirrenia di Navigazione SpA (‘Tirrenia’), a shipping company, contracted Combined Terminals Operators (‘CTO’) to provide the abovementioned port services.
21.The applicant argues that Tirrenia qualified as a contracting authority under that directive and was obliged to follow the award procedures provided for therein.
22.In the alternative the applicant contends that, if Directive 93/38 were found not to be applicable, the contract would fall under the more general rules of Council Directive 92/50/EEC.(4)
23.In its order for reference the national court considers that the agreement in question constitutes a contract within the scope of Directive 93/38 and that ratione personae Tirrenia qualifies as a contracting authority thereunder. It does not however give the reasons for its view.
24.Tirrenia argues that the rationale of Directive 93/38 is to exclude from its scope contracts entered into by undertakings operating in sectors fully open to competition, and it considers itself to come within that category of undertaking.
25.Referring to the preamble of Directive 93/38, in particular recital 13, and to the case-law of the Court, in particular the judgment in British Telecommunications,(5) the national court agrees that where a market is substantially open to competition from a number of operators Directive 93/38 does not apply. Relying on the analysis carried out by the Commission in its decision of 21 June 2001(6) under the State aid provisions of the Treaty, it notes that Tirrenia faces strong competition from private operators on some of its routes whereas on others it enjoys a de facto monopoly. The national court is therefore uncertain as to how the company’s activities should be categorised for the purposes of deciding whether Directive 93/38 applies.
26.Accordingly the national court seeks a preliminary ruling on:
‘(a)whether, in accordance with the recitals in the preamble to Directive 93/38, a company in the maritime transport sector which in some cases operates under a de facto monopoly and in others in circumstances of free competition and which benefits from State aid is to be regarded as always(7) subject to Directive 93/38
and, in the event that such a company is subject to the rules on public notice,
(b)whether the “technical specifications” mentioned in Article 18 of Directive 93/38 (transposed by Article 19 of Legislative Degree No 158/95) must be established prior to the procedure for selecting a contractor and whether they are subject to any publicity requirements’.
27.In addition to the parties in the main proceedings, Austria, the Netherlands and the Commission have submitted written observations. The parties in the main proceedings and the Commission also presented oral observations at the hearing.
Admissibility
28.Austria considers that both preliminary questions should be declared inadmissible. It claims that the order for reference fails to provide the necessary elements of fact and law to enable the Court to give an interpretation which could be useful for the purposes of the resolution of the main proceedings by the national court. Tirrenia objects to the admissibility of the second question, on the ground that it is irrelevant for the resolution of the case before the national court.
29.It is settled case-law that whenever questions referred to the Court in accordance with Article 234 EC involve the interpretation of Community law and the Court is sufficiently informed as to the context in which those questions have been raised, the Court is, in principle, obliged to give a ruling.(8) Moreover, ‘the Court can refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’.(9) Thus, a finding that a reference for a preliminary ruling is inadmissible is and, given the objective underlying Article 234 EC, should remain exceptional and limited to the circumstances mentioned.
30.Some of the conclusions reached by the national court in the instant case are not supported by a detailed exposition of the relevant facts or legal reasoning. It is also true, as most of the parties who have submitted written observations have pointed out, that the order for reference may be based on a misinterpretation of the criteria for determining the application of Directive 93/38.
31.Those shortcomings however do not necessarily mean that the questions referred should be declared inadmissible. Those questions are straightforward and are expressed in simple and succinct terms. Moreover the questions of Community law which they raise are clearly related to a real dispute and are, in the context referred to by the national court, relevant to the resolution of the main proceedings. They are not hypothetical in nature.
32.The factual and legal background of the main proceedings is explained in succinct but, in my view, sufficient detail to enable the Court and the parties submitting observations to make a proper assessment of the questions referred. Reference is also made to the relevant legal provisions, even though they may not have been explained in detail, and the parties submitting observations have been able to address the points at issue.
33.I therefore conclude that the questions referred are admissible.
Substance
34.Before consideration of the two questions referred by the national court, two preliminary issues must be examined: first, whether on a correct interpretation Directive 93/38 is applicable in the instant case; second, if it is not, whether Directive 92/50 is applicable.
Is Directive 93/38 applicable?
35.In its order for reference the national court reasons on the premiss that the dispute before it falls to be assessed under Directive 93/38 since Tirrenia is a contracting authority thereunder. It does not however explain the grounds for its premiss. It does not describe the private or public nature of Tirrenia or its main business activities, but merely refers to the analysis carried out by the Commission in its abovementioned decision of 21 June 2001.(10)
36.The Netherlands Government, the Commission and Tirrenia contend that since Tirrenia’s main activity is the shipping of goods and persons, Directive 93/38 is not applicable to it.
37.Even though in the context of Article 234 EC the Court must in principle confine its examination to the matters which the referring court has decided to submit to it for consideration and must therefore proceed on the basis of the situation which that court considers to be established,(11) the Court may extract from the information contained in the order for reference those aspects of Community law the interpretation of which will help the national court to resolve the issue before it.(12)
38.The scope of Directive 93/38 is defined in Article 2, which lays down a double criterion: it applies to contracting entities which meet the definition in Article 2(1)(a) and (b), read in conjunction with Article 1(1) and (2), and which exercise one of the activities referred to in Article 2(2). If either criterion is not satisfied, the body in question falls outside the scope of the directive.
39.As regards the activities covered, it follows from recital 19 in the preamble and from Article 2(2)(b)(ii) that, within the transport sector, shipping is excluded from the scope of Directive 93/38. Recital 19 justifies the exclusion by the competitive position of Community shipping, which makes it ‘inappropriate for the greater part of the contracts in this sector to be subject to detailed procedures’.(13) Accordingly, Article 2(2)(b)(ii) does not mention shipping as a relevant activity and subjects to the directive only ‘the provision of airport, maritime or inland port or other territorial facilities to carriers by air, sea or inland waterway’.
40.From the information contained in the case-file and the observations made at the hearing, in particular by Tirrenia, it appears that Tirrenia is a company whose main, if not sole, activity is the shipping of goods and persons, in which case it must fall outside the scope of Directive 93/38.
41.It is for the national court to determine, after reassessment of the facts in the light of the above considerations, whether that is indeed the case. If it finds that Directive 93/38 does not apply, the questions referred will not arise unless, as has been suggested, Directive 92/50(14) can apply in the alternative. That directive, it will be recalled, lays down general rules for the award of public service contracts.
Can Directive 92/50 apply in the alternative?
42.In the main proceedings the applicant argued in the alternative that, if the national court were to conclude that Directive 93/38 was not applicable, Tirrenia would be subject to the provisions of Directive 92/50. The national court, convinced that Directive 93/38 was applicable to the facts before it, did not refer a question to the Court on this point. Since that assumption may prove erroneous for the reasons stated above, the Court should, in line with previous practice and on grounds of procedural economy and expediency, address this issue in order to assist the national court in the determination of the case pending before it.
43.I do not agree with the applicant, the Commission and Austria that Directive 92/50 should apply in the alternative to Tirrenia.
44.It is commonplace that the original 1970s public procurement directives applying to works and supply contracts excluded from their field of application any contract awarded in the so-called utilities sectors, namely water, energy, transport and, as regards public supply contracts, telecommunications. The transport sector as a whole was thus excluded from the secondary Community rules on procurement until the utilities sectors were first regulated by Directive 90/531.(15) That directive was subsequently replaced by Directive 93/38, which extended its scope to public services contracts. Their content is otherwise essentially the same. Directive 93/38 will in turn be finally superseded in January 2006 when the period allowed for implementing Directive 2004/17(16) expires. The latter directive, in the interest of clarity, simplifies and updates the regulation of procurement in the utilities sectors in the light of the suggestions made by contracting entities and economic operators involved in those sectors(17) and the case-law of the Court.
45.As stated above, in view of its competitive position, Community shipping is explicitly excluded from the scope of Directive 93/38. That exclusion was already declared in the preamble to Directive 90/531(18) and is maintained, in simpler terms, in the preamble to Directive 2004/17.(19)
46.As regards the relationship between Directive 93/38 and Directive 92/50,(20) the 17th recital in the preamble to Directive 92/50 states that ‘the rules concerning service contracts as contained in [Directive 90/531] should remain unaffected by this Directive’. That recital was interpreted by the Court in Telaustria as meaning that the provisions of Directive 92/50 must not affect those of Directive 90/531 or those of its successor, Directive 93/38.(21) On that basis the Court concluded that ‘where a contract is covered by Directive 93/38 governing a specific sector of services, the provisions of Directive 92/50, which are intended to apply to services in general, are not applicable’.(22)
47.Like its predecessor, Directive 90/351, and its successor, Directive 2004/17, Directive 93/38 seeks to fill in the regulatory void as regards the sectors previously excluded from the general public procurement directives and to cater for the specific features of procurement in those sectors. It must be regarded as a self-contained regime unless otherwise expressly stated. Shipping, a sub-sector of the transport sector, would in principle have fallen within the subject-matter of Directive 93/38, but has been explicitly excluded. In this way, the Community legislature has laid down in Directive 93/38 what may be regarded as a lex specialis with regard to shipping, namely its exclusion from the Community public procurement legal regime.
48.It is moreover important to note that by reason of the specific characteristics of the targeted sectors, Directive 93/38 is meant to allow for greater flexibility than the general procurement directives.(23) In contrast to the situation under those directives, the main obligation on contracting entities under Directive 93/38 is that of publishing a notice in the Official Journal, after which they remain largely free to choose the award procedure most suitable to their own needs. The view that Directive 92/50 should apply in the alternative would lead to the paradoxical result that a sub-sector excluded by reason of its competitive nature from the application of the more flexible Directive 93/38 would become subject to the more rigid rules of Directive 92/50. That would in my view defeat the aim of the exclusion intended by the Community legislature when adopting Directive 93/38.
49.In view of the foregoing I conclude that a body whose sole business activity is shipping is excluded from the scope of Directive 93/38 and is not subject in the alternative to Directive 92/50. In the light of those considerations it is for the national court to assess the facts before it in order to determine whether Tirrenia exercises its activities in the excluded shipping sector. If so, the questions referred to the Court by the national court do not arise.
50.I will however go on to examine the questions referred, which are relevant if the national court finds that Tirrenia, by reason of its other business activities, falls within the scope of Directive 93/38.
The first question
51.According to the national court’s interpretation of Directive 93/38, in particular of recital 13 in the preamble, where free competition exists in a particular utilities sector, entities operating in that sector fall outside the scope of the directive. The national court has doubts however as to how a situation such as Tirrenia’s, whose activities are carried out in some cases under competitive conditions and in other cases under a de facto monopoly, must be qualified for the purposes of Directive 93/38 and, by its first question, seeks clarification from the Court in this respect.
52.First, however, I must examine whether the existence of competition in the sector concerned is relevant for the application of the directive. If not, the questions raised by the national court need not be addressed.
53.Two opposing positions emerge on that issue.
54.On the one hand, the national court, the parties to the main proceedings, and the Netherlands and Austrian Governments contend that, whenever a sector is subject to open competition, the provisions of Directive 93/38 should not apply.
55.On the other hand, the Commission maintains that Directive 93/38 was never intended to provide for a general exemption for sectors where competition exists. Only when an express exemption is provided for by one of its provisions, such as Articles 2(4) and 8(1), are contracting authorities operating in those sectors exempted from the provisions of Directive 93/38.
56.It is clear in my view that the Commission’s thesis cannot be accepted.
57.In the first place, the wording of recital 13 in the preamble is couched in unambiguous terms, covers all four sectors and leaves little scope for interpretation.
58.In addition, the purpose of the Community rules governing procurement in the utilities sectors is to address the circumstances which led entities operating in those sectors to award contracts on a national basis. According to the preambles to the past, present and future directives regulating procurement in the utilities sectors, there are two main interrelated causes for discriminatory procurement, namely, the closed nature of the markets in which the relevant entities operate and the various ways in which national authorities can influence the behaviour of those entities.(24) It is assumed that where entities operate under undistorted competitive conditions, market forces will by themselves ensure that the best value for money is sought in every contract, and that there is therefore no need to subject their procurement to detailed award procedures.
59.In this respect the Court has held in its case-law on the notion of ‘body governed by public law’ for the purposes of the procurement directives that ‘if the body operates in normal market conditions, aims to make a profit, and bears the losses associated with the exercise of its activity, it is unlikely that the needs it aims to meet are not of an industrial or commercial nature. In such a case, the application of the Community directives relating to the coordination of procedures for the award of public contracts would not be necessary, moreover, because a body acting for profit and itself bearing the risks associated with its activity will not normally become involved in an award procedure on conditions which are not economically justified’.(25)
60.Furthermore, the interpretation proposed by the Commission might distort competition in two ways. On the one hand, it would place public entities or public undertakings operating in truly competitive markets at a disadvantage with respect to competing private firms. Whereas the latter would be able to procure freely, contracting public entities would be required to comply with award procedures and other procurement obligations, regardless of whether their procurement policies were carried out on strict commercial criteria. On the other hand, it would also distort competition between sub-sectors that are in a relationship of competition substitution, such as bus transport and railways or different forms of energy. Such distortions of competition are not regarded as minor by the economic actors involved. Indeed, one of the most common criticisms of Community public procurement regulation relates to its complexity, rigidity and the related compliance costs that entities subject to it must endure.(26)
61.In the same vein, the principle of proportionality requires in my view that where there is a choice between different interpretations, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. For the reasons above I question whether the Commission’s proposed interpretation respects that principle.
62.Finally, as regards the judgment in British Telecommunications(27) referred to as authority by the national court and some of the parties, the Court’s interpretation in that case is confined to the specific exemption contained in Article 8(1) of Directive 93/38. For that reason it does not in my view support the general conclusion that, as a matter of principle, the degree of competition should be taken as to be a relevant factor when deciding whether Directive 93/38 should apply.
63.The above considerations lead me to conclude that, where bodies which would qualify as contracting entities under Directive 93/38 carry out their business activities under direct exposure to competitive forces in a market where access is unrestricted, the directive should not apply. When assessing whether that is the case, the national court must verify whether the body in question operates without the protection of the public authorities, assumes the commercial and financial risks inherent in economic activity, does not have recourse to the public purse to offset potential losses and, ultimately, bears the risk of bankruptcy.
64.Having reached that conclusion, I turn now to the national court’s first question, namely how to classify for the purposes of Directive 93/38 an entity which in some cases operates under a de facto monopoly and in others in circumstances of free competition and which benefits from State aid.
65.In order to answer that question it is again useful to refer to the Court’s case-law on the notion of ‘body governed by public law’. As the Austrian Government rightly observes, the Court appears to have endorsed in that case-law, starting with its judgment in Mannesman,(28) the ‘infection theory’ to the effect that if one of an entity’s activities falls within the scope of the procurement directives, all its other activities are equally subject, regardless of whether they are of an industrial or commercial nature. The Court justified that approach on the basis of the need to respect the principle of legal certainty, which requires a Community rule to be clear and its application foreseeable by all those concerned. According to the Court’s reasoning such a principle would be impaired if the application of the procurement directives could vary according to the relative proportion of the entity’s activities pursued for the purpose of meeting needs not having an industrial or commercial character.
66.To subject the award of all contracts ‘whatever their nature’ to the discipline of the directive without further qualification is perhaps too radical a stance. Entities carrying out only a minor part of their activities under the directives would be placed at a competitive disadvantage with respect to the majority of their commercial activities. The Court appears to have weighed those drawbacks against the requirements of legal certainty, finally accepting the former as the price to be paid for the latter.(29) That interpretation has been confirmed in later judgments.(30)
67.In view of that case-law and in application of the ‘infection theory’, all contracts of a body performing activities both under competition and under a de facto or de jure monopoly would come within the scope of the directive since in the latter case the conditions for exclusion would be absent. That would moreover be so regardless of the relative proportion between activities carried out under pure market forces and under a monopoly.
68.I would suggest a qualification to such an approach for the same reasons that have led me to conclude that competition should be taken as a relevant factor when deciding whether the directive should apply. In my view, if the entity can show that the contracts in question relate exclusively to its activities directly exposed to competitive forces and that there is no cross-subsidisation between those activities and others exercised under non-competitive conditions, then the infection theory should give way. The national court must satisfy itself that those conditions are fulfilled.
69.As regards the State aid referred to by the national court, it seems clear that public financing is one of the elements which the national court should take into consideration in deciding whether the entity in question truly operates directly under competitive forces.(31)
The second question
70.By its second question the national court asks whether, if Directive 93/38 applies, the ‘technical specifications’ mentioned in Article 18 must be established prior to the procedure for selecting a contractor and whether they are subject to any publicity requirements.
71.As regards the first limb of the question, technical specifications are defined by Article 1(8) of Directive 93/38 as ‘the technical requirements contained in particular in the tender documents, defining the characteristics of a set of works, material, product, supply or service, and enabling a piece of work, a material, a product, a supply or a service to be objectively described in a manner such that it fulfils the use for which it is intended by the contracting entity’.
72.Technical specifications define the object of the contract in precise terms, they enable interested undertakings to assess whether to present a bid and they provide contracting authorities with the technical parameters to assess in relation to their needs the various offers presented. It clearly follows from their very nature that they must be established prior to the selection of a contractor.
73.As regards the second limb of the question, relating to publicity requirements, Directive 93/38, reproducing the approach of Directive 92/50, distinguishes between ‘priority’ public service contracts, to which the directive applies in full, and ‘non-priority’ service contracts, to which, pursuant to Article 16 of the directive, only Articles 18 and 24 apply. Article 18 lays down the rules concerning the use of technical specifications and standards in contract award procedures. Article 24 governs the post-award information that the contracting authority must communicate to the Commission for monitoring purposes. Non-priority service contracts, which are considered to have little impact on cross-border trade, are thus not subject to the detailed award procedures of the directive, including the requirement of publication. Non-priority services are listed in Annex XVI B to Directive 93/38.
74.The services which are the subject of the contract at issue in the national proceedings appear to fall within Annex XVI B of Directive 93/38, category 20, ‘supporting and auxiliary transport services’.(32) Article 18(1) requires contracting authorities to include the technical specifications in the general documents or contract documents relating to each contract. No other publication obligation is imposed on contracting authorities by that provision. There is thus in principle no specific obligation to publish the technical specifications relating to services contracts falling under Annex XVI B.
75.The Court held in Telaustria, however, that, even when contracts are excluded from the scope of the procurement directives, 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 implies an obligation of transparency, which includes ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition and the impartiality of procurement procedures to be reviewed.(33)
76.The same reasoning should, as the Commission points out in its observations, apply when a contract is subject only to certain provisions of the procurement directives. As the Court has held, the duty to treat tenderers equally lies at the heart of the procurement directives and, together with the principle of transparency, must be complied with in every stage of the award procedure so as to afford equality of opportunity to all tenderers when formulating their tenders.(34) Thus, those general principles cover not only the definition of technical specifications by contracting authorities but also the means by which those specifications are made known to potential bidders. Those means must therefore ensure a sufficient degree of transparency and place all potential bidders on an equal footing.
77.The question remains as to what means are to be considered sufficient in that regard. At the hearing, answering a question posed by the Court, the Commission acknowledged that transparency requirements for technical specifications in contracts relating to non-priority services could not go as far as those imposed for contracts concerning priority services. It did not however specify in what concrete ways those requirements could be fulfilled.
78.In the instant case, since technical specifications are usually contained in rather voluminous documents, it would in my view fulfil those criteria to make the general documents readily available to all interested undertakings in sufficient time and on equal conditions. Support for that view may be drawn from Article 19 of Directive 93/38, which requires contracting entities to make available on request to interested parties the technical specifications regularly referred to in their contracts. Even though that provision is not applicable to the instant case, it indicates that the Community legislature considers making the relevant technical specifications available on request to be a suitable solution.
79.It is for the national court to decide whether, on the facts of the case, the means adopted by the contracting authority to make potential bidders aware of the technical specifications have respected these conditions.
Conclusion
80.In view of the foregoing I consider that the Court should answer the national court’s questions in the following terms:
–A body whose sole business activity is shipping is excluded from the scope of Directive 93/38 and is not subject in the alternative to Directive 92/50. It is for the national court to determine whether the body in question exclusively exercises its activities in the excluded shipping sector.
–Where bodies that would otherwise qualify as contracting entities under Directive 93/38 carry out their business activities directly under competitive forces in a market where access is unrestricted, Directive 93/38 does not apply. When assessing whether that is the case, the national court must verify that the market concerned is de jure and de facto competitive and that the body in question operates without the protection of the public authorities, assumes the commercial and financial risks inherent in economic activity, does not have recourse to the public purse to offset potential losses and, ultimately, bears the risk of bankruptcy.
–If where Directive 93/38 applies a contracting entity carries out its activities both directly under competitive forces in a market where access is unrestricted and under a de facto monopoly, it must respect the obligations arising from that directive, unless it can show that the contracts in question relate exclusively to the activities directly exposed to competitive forces and that there is no cross-subsidisation between those activities and the ones exercised under non-competitive conditions.
–Technical specifications governed by Article 18 of Directive 93/38 must be established prior to the selection of a contractor and must be made known or available to potential bidders by means that ensure transparency and place all potential bidders on an equal footing. It is for the national court to decide whether, in each case, the means used by the contracting entity to make potential bidders aware of the technical specifications have respected those conditions. It will normally be sufficient to make the general documents containing the technical specifications readily available to all interested undertakings in sufficient time and on equal conditions.
1 – Original language: English.
2 – OJ 1993 L 199, p. 84.
3 – Council Directive 71/305/EEC of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts (OJ, English Special Edition 1971(II), p. 682), and Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p.1).
4 – Of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
5 – Case C-392/93 [1996] ECR I-1631.
6 – Commission Decision 2001/851/EC of 21 June 2001 on the State aid awarded to the Tirrenia di Navigazione shipping company by (OJ 2001 L 318, p. 9).
7 –Emphasis in the original.
8 – Case C-18/01 Korhonen [2003] ECR I-5321, paragraph 19, and the case-law cited there.
9 – Ibid., paragraph 20 and the case-law cited therein.
10 – Cited in footnote 6.
11 – C-466/00 Kaba [2003] ECR I-2219, paragraph 41.
12 – See, for example, Joined Cases 110/78 and 111/78 van Wesemael [1979] ECR 35, paragraph 21; Case 22/80 Boussac v Gerstenmeier [1980] ECR 3427, paragraph 5; Case 16/83 Prantl [1984] ECR 1299, paragraph 10.
13 – This exclusion is explained in greater detail by the Commission in its ‘Communication on a Community regime for procurement in the excluded sectors: water, energy, transport and telecommunications’, COM(88) 376 final of 11 October 1988, at paragraphs 221 to 247 and 418 to 421.
14 – Cited in footnote 4.
15 – 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).
16 – Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (‘Directive 2004/17’) (OJ 2004 L 134 p. 1).
17 – See the Commission’s Green Paper on Public Procurement in the European Union: Exploring the Way Forward, COM(96) 583 final, of 27 November 1996 and its Communication Public Procurement in the European Union,COM(98) 143 final of 11 March 1998.
18 – 19th recital.
19 – Recital 4 in the preamble to Directive 2004/17 simply states that in view of the competitive position of Community shipping, it would be inappropriate to make contacts awarded in this sector subject to its rules.
20 – Recital 47 in the preamble to Directive 93/38 explains the relationship between the scope of Directive 93/38 and those of the original public works (71/305/EEC) and public supply (77/62/EEC) directives, but does not contain any reference to Directive 92/50.
21 – Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraphs 31 and 32.
22 – Ibid., paragraph 33.
23 – Recital 45 in the preamble to Directive 93/38.
24 – Recitals 11 and 12 in the preambles to Directive 90/351 and Directive 93/38 and recitals 2 and 3 in the preamble to Directive 2004/17.
25 – Korhonen, cited at footnote 8, paragraph 51. See also more recently Case C-283/00 Commission v Spain[2003] ECR I-11697, paragraphs 81, 82 and 92.
26 – See the Commission’s Green Paper at page 5, point 2.10 and page 8, point 3.6 and the Commission’s Communication, at page 3, both cited in footnote 17.
27 – Cited in footnote 5.
28 – Case C-44/96 Mannesmann Anlagenbau Austria and Others v Strohal Rotationsdruck [1998] ECR I-73, paragraphs 25 and 30 to 35.
29 – Advocate General Léger argued that accepting the opposite interpretation could entail abuses by Member States and that consequently a criterion based on the relative proportion of the entity’s activities devoted to needs in the general interest should be rejected. Opinion in Case C-44/96 Mannesmann, cited above, point 77.
30 – Case C-360/96 Gemeente Arnhern and Gemeente Rheden v BFI Holding [1998] ECR I-6821, paragraphs 55 and 56; Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 54 and 55; Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 56.
31 – Case C-380/98 [2000] ECR I-8035, paragraphs 21 to 25.
32 – See the analysis of what falls within that category carried out by Advocate General Mischo in his Opinion in Case C-411/00 Felix Swoboda [2002] ECR I-10567, at point 67 et seq.
33 – Telaustria, cited in footnote 21, paragraphs 60 to 63.
34 – Case C-87/94 Commission v [1996] ECR I-2043, paragraphs 51 and 54.