Keywords
Summary

Keywords

1 Approximation of laws - Procedures for concluding public service contracts - Directive 92/50 - Contracting authorities - Body governed by public law - Needs in the general interest, not having an industrial or commercial character - Meaning - Existence of private undertakings capable of satisfying such needs - Not relevant

(Council Directive 92/50, Art. 1(b), second subpara.)

2 Approximation of laws - Procedures for concluding public service contracts - Directive 92/50 - Exception provided for by Article 6 of the directive - Condition - Observance of Treaty provisions

(EC Treaty, Art. 85 et seq.; Council Directive 92/50, Art. 6)

3 Approximation of laws - Procedures for concluding public service contracts - Directive 92/50 - Contracting authorities - Body governed by public law - Status not dependent on the relative importance of activities designed to satisfy needs in the general interest and of the way they are carried out

(Council Directive 92/50, Art. 1(b), second subpara.)

4 Approximation of laws - Procedures for concluding public service contracts - Directive 92/50 - Contracting authorities - Body governed by public law - Needs in the general interest, not having an industrial or commercial character - Legal form of provisions defining such needs - Not relevant

(Council Directive 92/50, Art. 1(b), second subpara.)

Summary

5 The second subparagraph of Article 1(b) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which provides that `[b]ody 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', must be interpreted as meaning that the Community legislature drew a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character.

The term `needs in the general interest not having an industrial or commercial character' does not exclude needs which are or can be satisfied by private undertakings as well. The fact that there is competition is not sufficient to exclude the possibility that a body financed or controlled by the State, territorial authorities or other bodies governed by public law may choose to be guided by other than economic considerations.

However, the existence of competition is not entirely irrelevant to the question whether a need in the general interest is other than industrial or commercial. The latter needs are as a general rule met otherwise than by the availability of goods or services in the marketplace. In general, needs of that kind are those for which, for reasons associated with the general interest, the State itself chooses to provide or over which it wishes to retain a decisive influence.

The removal and treatment of household refuse may be regarded as constituting a need in the general interest. Since the degree of satisfaction of that need considered necessary for reasons of public health and environmental protection cannot be achieved by using disposal services wholly or partly available to private individuals from private economic operators, that activity is one of those which the State may require to be carried out by public authorities or over which it wishes to retain a decisive influence.

6 Recourse to Article 6 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which provides that `[t]his directive shall not apply to public service contracts awarded to an entity which is itself a contracting authority within the meaning of Article 1(b)', is subject to the condition that the laws, regulations or administrative provisions on which the exclusive right of a body governed by public law is based must be compatible with the Treaty. The protection of competitors of bodies governed by public law is thus assured by Article 85 et seq. of the Treaty.

7 The status of a body governed by public law referred to in the second subparagraph of Article 1(b) of Directive 92/50 relating to the coordination of public service contracts is not dependent on the relative importance, within its business as a whole, of the meeting of needs in the general interest not having an industrial or commercial character. It is likewise immaterial that commercial activities may be carried out by a separate legal person forming part of the same group or concern as it.

8 The second subparagraph of Article 1(b) of Directive 92/50 relating to coordination of public service contracts must be interpreted as meaning that the existence or absence of needs in the general interest not having an industrial or commercial character must be appraised objectively, the legal forms of the provisions in which those needs are mentioned being immaterial in that respect.