Keywords
Summary

Keywords

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Direct award of a public service contract by a public authority to a company limited by shares with wholly public capital

(Arts 43 EC and 49 EC)

Summary

It is not contrary to Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality or the obligation of transparency arising therefrom for a public service contract to be awarded directly to a company limited by shares with wholly public capital so long as the public authority which is the contracting authority exercises over that company control similar to that which it exercises over its own departments and so long as the company carries out the essential part of its activities with the authority or authorities controlling it.

Without prejudice to the determination by the court making the reference of the effectiveness of the relevant provisions of the statutes, the control exercised over that company by the shareholder authorities may be regarded as similar to that which they exercise over their own departments when:

– that company’s activity is limited to the territory of those authorities and is carried on essentially for their benefit, and

– through the bodies established under the company’s statutes made up of representatives of those authorities, the latter exercise conclusive influence on both the strategic objectives of the company and on its significant decisions.

(see para. 90, operative part)