Keywords
Summary

Keywords

1. Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 93/38 - Work - Definition - Criterion - Economic and technical function of the result of the works - Artificial splitting of a single work - Electrification and street lighting works - Assessment

(Council Directive 93/38, Art. 14(10), subpara. 1, second sentence, and (13))

2. Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 93/38 - Work - Definition - Existence of a single contracting entity and possibility of a single undertaking's carrying out the whole of the works - Not decisive criteria

(Council Directive 93/38, Art. 14(10), subpara. 1, second sentence)

3. Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 93/38 - Principle of non-discrimination between tenderers - Scope

(Council Directive 93/38, Art. 4(2))

Summary

1. In order to determine whether several lots of a single work have been artificially split within the meaning of Article 14(3) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, that provision must be taken into account in conjunction with Article 14(10), first subparagraph, of that directive. In that connection, it is clear from the definition of work in Article 14(10), first subparagraph, second sentence, of Directive 93/38 that the existence of a work must be assessed in the light of the economic and technical function of the result of the works concerned.

It follows that, in the case of a series of specific maintenance and extension works on the existing electricity supply and street lighting networks, the result of which, once completed, will be subsumed within the function fulfilled by the networks concerned, the question whether there is a work must be assessed in the light of the economic and technical function fulfilled by the electricity supply and street lighting networks in question. An electricity supply network is intended, from a technical point of view, to transport the electricity produced by a supplier to individual end consumers; in terms of economics, they must pay the supplier for what they consume.

A street lighting network, on the other hand, is intended, from a technical point of view, to light public places using the electricity provided by the electricity supply network. The authority providing the street lighting assumes the cost itself, but subsequently recovers the amounts spent from the population served, without adjusting the sums demanded according to the benefit derived by the individuals concerned. It follows that an electricity supply network and a street lighting network have a different economic and technical function and that works on the electricity supply and street lighting networks cannot be considered to constitute lots of a single work artificially split contrary to Article 14(10), first subparagraph, and (13) of the Directive.

( see paras 31, 36-38, 52-56 )

2. While the existence of a single contracting entity and the possibility of a Community undertaking's carrying out the whole of the works described in the contracts concerned may, according to circumstances, constitute corroborative evidence of the existence of a work within the meaning of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, they cannot constitute decisive criteria on that point. Thus, if there is a number of contracting entities and the whole of the works concerned cannot be carried out by a single undertaking, this will not call into question the existence of a single work where that conclusion results from the application of the criteria concerning function set out in Article 14(10), first subparagraph, second sentence, of the Directive. The definition of the term work in that subparagraph does not make the existence of a work dependent on matters such as the number of contracting entities or whether the whole of the works can be carried out by a single undertaking.

( see paras 42-43 )

3. The principle of non-discrimination between tenderers laid down by Article 4(2) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, applies to all the stages of the tendering procedure and not only from the time when a contractor submits a tender. That interpretation is consistent with the purpose of the Directive which is to open up the contracts to which it applies to Community competition. That purpose would be undermined if a contracting entity could organise a tendering procedure in such a way that contractors from Member States other than that in which the contracts are awarded were discouraged from tendering. It follows that Article 4(2) of the Directive, in prohibiting any discrimination between tenderers, also protects those who are discouraged from tendering because they have been placed at a disadvantage by the procedure followed by a contracting entity.

( see paras 107-109 )