Case C‑425/12

Portgás — Sociedade de Produção e Distribuição de Gás SA

v

Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território

(Request for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto)

‛Procedures for awarding public contracts in the water, energy, transport and telecommunications sectors — Directive 93/38/EEC — Directive not transposed into national law — Whether the State may rely on that directive against a body holding a public service concession in the case where that directive has not been transposed into national law’

Summary — Judgment of the Court (Fifth Chamber), 12 December 2013

1. Acts of the institutions — Directives — Effect — Non-implementation by a Member State — Right of individuals to rely on the directive — Conditions

   (Art. 288, third para., TFEU; Council Directive 93/38, Arts 4(1), 14(1)(c)(i) and 15)

2. Acts of the institutions — Directives — Direct effect — Limits — No possibility of relying on a directive against an individual

   (Art. 288, third para., TFEU)

3. Acts of the institutions — Directives — Direct effect — Body given responsibility for providing, under the control of the State, a public-interest service and which has special powers — Possibility of relying on a directive against that body

   (Art. 288, third para., TFUE)

4. Acts of the institutions — Directives — Direct effect — Limits — No possibility of relying on a non-transposed directive against a private undertaking which is the exclusive holder of a public service concession

   (Art. 288, third para., TFEU; Council Directive 93/38, Arts 4(1), 14(1)(c)(i) and 15)

5. Acts of the institutions — Directives — Implementation by Member States — Need to ensure that directives are effective — Obligation, on a body given responsibility for providing, under the control of the State, a public-interest service and which has special powers, to comply with the provisions of directives — Whether possible for national authorities to rely on those provisions against that body

   (Art. 4(3) TEU; Art. 288, third para., TFEU; Council Directive 93/38, Arts 4(1), 14(1)(c)(i) and 15)

1.  See the text of the decision.

   (see paras 18-20)

2.  See the text of the decision.

   (see para. 22)

3.  See the text of the decision.

   (see paras 23, 24, 26, 33)

4.  Articles 4(1), 14(1)(c)(i) and 15 of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, must be interpreted as meaning that they cannot be relied on against a private undertaking solely on the ground that, in its capacity as the exclusive holder of a public-interest service concession, that undertaking comes within the group of persons covered by that directive.

   Even if a private party comes within the group of persons covered by a directive, the provisions of that directive may not be relied on as such against that person before the national courts. Consequently, the mere fact that a private undertaking which is the exclusive holder of a public service concession is among the entities expressly referred to as constituting the group of persons covered by Directive 93/38 does not mean that the provisions of that directive may be relied on against that undertaking.

   (see paras 25, 39, operative part)

5.  A private undertaking, which has been given responsibility, pursuant to a measure adopted by the State, for providing, under the control of the State, a public-interest service and which has, for that purpose, special powers going beyond those which result from the normal rules applicable in relations between individuals, is obliged to comply with the provisions of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, and the authorities of a Member State may therefore rely on those provisions against it.

   The obligation on a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 288 TFEU and by the directive itself. That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of the Member States as well as on bodies which, under the control of those authorities, have been given responsibility for a public-interest service and which have, for that purpose, special powers. It follows that the authorities of the Member States must be in a position to ensure that such bodies comply with the provisions of Directive 93/38.

   (see paras 34, 38, 39, operative part)