Case C-26/03

Stadt Halle and RPL Recyclingpark Lochau GmbH

v

Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna

(Reference for a preliminary ruling from the Oberlandesgericht Naumburg)

(Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC)

Opinion of Advocate General Stix-Hackl delivered on 23 September 2004

Judgment of the Court (First Chamber), 11 January 2005

Summary of the Judgment

1. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Obligation of the Member States to provide for review procedures – Reviewable decisions – Meaning – Decisions taken outside a formal award procedure and prior to a formal call for tenders – Included – Access to review procedures – Conditions – Requirement for procedure to have reached a particular stage – Not permissible

(Council Directives 89/665, Art. 1(1), and 92/50)

2. Approximation of laws – Award procedures for public service contracts – Directive 92/50 – Scope – Contracting authority having a holding in the capital of a company legally distinct from it together with one or more private undertakings – Contract concluded by the contracting authority with that company – Included

(Council Directive 92/50)

1. Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, itself amended by Directive 97/52, must be interpreted as meaning that the obligation of the Member States to ensure that effective and rapid remedies are available against decisions taken by contracting authorities extends also to decisions taken outside a formal award procedure and decisions prior to a formal call for tenders, in particular the decision on whether a particular contract falls within the personal and material scope of Directive 92/50, as amended. That possibility of review is available to any person having or having had an interest in obtaining the contract in question who has been or risks being harmed by an alleged infringement, from the time when the contracting authority has expressed its will in a manner capable of producing legal effects. The Member States are not therefore authorised to make the possibility of review subject to the fact that the public procurement procedure in question has formally reached a particular stage.

(see para. 41, operative part 1)

2. Where a contracting authority intends to conclude a contract for pecuniary interest relating to services within the material scope of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, with a company legally distinct from it, in whose capital it has a holding together with one or more private undertakings, the public award procedures laid down by that directive must always be applied, even if the holding is a majority one.

(see para. 52, operative part 2)

JUDGMENT OF THE COURT (First Chamber) 11 January 2005 (1)

(Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC)

In Case C-26/03, REFERENCE for a preliminary ruling under Article 234 EC from the Oberlandesgericht Naumburg (Higher Regional Court, Naumburg, Germany), made by decision of 8 January 2003, received at the Court on 23 January 2003, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, J.N. Cunha Rodrigues, E. Juhász (Rapporteur), M. Ilešič and E. Levits, Judges,

Advocate General: C. Stix-Hackl,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 23 September 2004,

gives the following

‘1.

…

3.‘1.

…’

‘For the purposes of this Directive:

…

…’

‘1.

…

provided that at least 80% of the average turnover of that undertaking with respect to services arising within the Community for the preceding three years derives from the provision of such services to undertakings with which it is affiliated.

…’

On those grounds, the Court (First Chamber) rules as follows:

[Signatures]