Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH

(Case C-206/08) (1)

(Procurement procedures of entities operating in the water, energy, transport and postal services sectors - Public service for the distribution of drinking water and the treatment of sewage - Service concession - Definition - Transfer to the supplier of the risk connected with operating the service in question)

2009/C 267/34

Language of the case: German

Referring court

Thüringer Oberlandesgericht

Parties to the main proceedings

Applicant: Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha)

Defendant: Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH

Intervening parties: Stadtwirtschaft Gotha GmbH, Wasserverband Lausitz Betriebsführungs GmbH (WAL)

Re:

Reference for a preliminary ruling — Thüringer Oberlandesgericht — Interpretation of Article 1(2)(a) and (d) and 1(3)(b) of 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 (OJ 2004 L 134, p. 1) — Call for bids for the provision, in the form of a public service concession, of a service to the public in respect of the production, transport and distribution of drinking water and in respect of the disposal and treatment of sewage — Criteria for distinguishing a public service contract from a public service concession

Operative part of the judgment

In relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for the contract in question to be categorised as a ‘service concession’ within the meaning of Article 1(3)(b) of 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, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.

(1)  OJ C 247, 27.9.2008.