C-275/98

UNITRON SCANDINAVIA AND 3-S

OPINION OF ADVOCATE GENERAL ALBER delivered on 8 July 1999 *

A — Introduction 'When a contracting authority within the meaning of Article 1(b) 2grants to a body other than a contracting authority — regardless of its legal status — special or exclusive rights to engage in a public service activity, the instrument granting this right shall stipulate that the body in question must observe the principle of non- 1. The present reference for a preliminary discrimination by nationality when award- ruling concerns two questions in connec- ing public supply contracts to third parties.' tion with public procurement. On the one hand it concerns the question as to what legal significance is to be attributed to a non-discrimination clause (prohibition against discrimination on the ground of nationality) contained in a directive on procedures for the award of public supply contracts, and on the other hand whether such a non-discrimination provision con- B — Facts tains an obligation for bodies which are not contracting authorities to carry out a (tendering) procedure in accordance with the directive when awarding (public) sup- ply contracts. 3. The dispute in the main proceedings concerns a tendering procedure with regard to eartags for pigs. The complainants, Unitron Scandinavia A/S and 3-S A/S,

Danske Svineproducenters Serviceselskab approved by the Veterinary Department, (hereinafter 'the complainants') wished to which is itself subject to the respondent. supply those eartags. The respondent, Those eartags are then sold to the indivi- Ministeriet for Fødevarer, Landbrug og dual producers via Danske Slagterier, a Fiskeri (Ministry of Foodstuffs, Agriculture private body connected to the Danish and Fisheries; hereinafter 'the respondent' agricultural organisations. The Veterinary or 'the Ministry') bears the Overall respon- Department fixes the price for the eartags sibility' for the Danish scheme involving and the supply of eartags is registered in the eartags for pigs. The award procedure, Ministry of Agriculture's Central Livestock which is the subject of the complainants' Register. grievance, was carried out by the Veteri- nærdirektoratet (Veterinary Department), a subordinate institution of the respondent, as well as Danske Slagterier (Danish Abat- toirs), a private body.

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OPINION OF MR ALBER — CASE C-275/98

Review Board also assumes that Danske that this provision 6 has lost its independent Slagterier are not to be considered a meaning due to the fact that a directive on contracting authority within the meaning the award of public service contracts has of Article 1(b) of Directive 93/36, because already been adopted, namely Directive no more than fifty per cent of their 92/50 relating to the coordination of pro- activities are financed by public funds. cedures for the award of public service contracts. The Procurement Review Board also considers it possible that this indepen- dent meaning remains in effect, due to the fact that, in spite of amendments made to Directive 93/36, Article 2(2) remained the same.

6 — This provision had already been worded almost identically 5 — Council Directive 92/50/EEC of 18 June 1992 on the in Article 2(3) of Council Directive 77/62/EEC of coordination of procedures for the award of public service 21 December 1976 on the coordination of procedures for contracts (OJ 1992 L 13, p. 1). the award of public supply contracts (OJ 1977 L 13, p. 1).

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13. The Procurement Review Board there- sible — and the Commission have taken fore refers the following questions to the part in the procedure before the Court. Court of Justice for a preliminary ruling: Both have submitted written statements and declined to participate in the oral hearings. I shall refer to their arguments as far as may be necessary in the course of my analysis. '1. Does Article 2(2) of Council Directive 93/36/EEC coordinating procedures for the award of public supply con- tracts still have an independent mean- ing after the adoption of Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts (as both amended by European Parliament C — Opinion and Council Directive 97/52/EEQ?

2. If Question 1 is answered in the affirmative, does the provision accord- 1. Admissibility of the reference for a ingly mean that, where a contracting preliminary ruling authority entrusts the administration of an eartagging scheme to a private undertaking which is not a contracting authority, the contracting authority should stipulate, on the one hand, that the undertaking should comply with the prohibition against discrimination (a) Whether the Procurement Review Board on the ground of nationality in public constitutes a court or tribunal within the supply contracts which the undertaking meaning of Article 117 of the EC Treaty awards to third parties and, on the (now Article 234 EC) other hand, that the procurement of goods linked to the scheme should be put out to public tender if the value of the goods to be procured exceeds the threshold value in Council Directive 93/36?'

17. The Procurement Review Board was — according to information which it has itself provided — established by Law No 344 of 18. That conclusion is to be endorsed. The 6 June 1991. It was set up in implementa- Court has repeatedly held that in order to tion of Council Directive 89/665/EEC 7 on determine whether a body making a refer- the coordination of laws, regulations and ence is a court or tribunal for the purposes administrative provisions relating to the of Article 177 of the Treaty, which is a application of review procedures to the question governed by Community law award of public supply and public works alone, the Court takes account of a number contracts. Proceedings before the Procure- of factors, such as whether the body is ment Review Board are like those in civil established by law, whether it is permanent, disputes. They are adversarial in nature and whether its jurisdiction is compulsory, in nearly all cases an oral hearing takes whether it applies rules of law, whether its place. Proceedings are concluded by the rulings are binding, whether it is indepen- Procurement Review Board handing down dent and whether its procedure is inter a decision in the form of an order. Such partes. 8Since it fulfils the requirements set orders are formulated in the same terms as out by the Court in its case-law, the judgments in civil cases. The Procurement Procurement Review Board may be con- Review Board is not bound by the instruc- sidered a 'court or tribunal' within the tions of any other body and operates as a meaning of Article 177 of the Treaty. A completely independent institution. The reference for a preliminary ruling is, at least Procurement Review Board is composed from that perspective, admissible. of a presiding judge as well as a panel of experts. The rulings of the Procurement 8 — See Case 61/65 Vaassen-Göbbels v Vorstand des Beamb- tenfonds voor het Mijnbedrijf [1966] ECR 261; Case C-393/92 Almelo and Others v Energiebedrijf IJsselmij [1994] ECR I - 1477: Case C-54/96 Dorsch Consult v 7 — Council Directive 89/665/EEC of 21 December 1989 Bundesbaugesellschaft Berlin [1997] ECR I - 4961, para- (OJ 1989 L 395, p. 33). graph 23.

(b) The importance of the questions refer- 20. Article 177 of the Treaty provides that red it is up to the national court to decide whether a preliminary ruling from the Court of Justice is necessary. Article 177 does not provide that the Court may reject such a reference. The Court has thus consistently held that it is solely for the national courts before which actions are brought, and which must bear the respon- sibility for the subsequent judicial decision, to determine, in the light of the special features of each case, both the need for a 19. The respondent nevertheless still con- preliminary ruling in order to enable them siders the reference inadmissible on the to deliver judgment and the relevance of the ground that a ruling on the questions questions which they submit to the Court. 9 submitted is not indispensable in order for One factor particularly in favour of this the Procurement Review Board to hand solution is the fact that it is solely the down its decision. An answer would not national court which has direct and exact contribute to resolving the dispute in the knowledge of the facts and is in the best main proceedings. The respondent holds position to decide the issue. Where the that, although it may be within the purview questions referred by a national court of the national court to decide whether or concern the interpretation of Community not a reference pursuant to Article 177 of law, the Court of Justice is, as a rule, the Treaty is necessary and indispensable required to hand down a ruling. for its ruling, the reference is inadmissible because any answer in the present case would only be of hypothetical value. The respondent further argues that an interpre- tation of Article 2(2) of Directive 93/36 as requested by the Procurement Review Board would not have any impact on the complainants' legal situation. The respon- dent holds that there is no legal interest worth protecting and that, in reality, ques- 21. The Court has, however, occasionally tions are concerned that might arise in allowed exceptions to that rule and refused some later legal dispute. It would, in any to rule upon some or all of the questions event, be of no help to undertakings if the referred to it. Such cases are, on the one Court were to answer the questions, hand, where the national court has not because in the meantime, a possible proce- provided the Court of Justice with enough dural error had been cured by the award of information for the latter to be able to hand the disputed contract. The last tendering down a ruling that might be of some use to procedure which was carried out in the former in the main dispute. On the 1997/98 had, the respondent argues, taken other hand, the Court has, on a number of place in conformity with Directive 93/36 occasions, refused to answer the questions (supply contracts). Thus the complainants referred to it where it was obvious that they could only claim damages, a matter for which the Procurement Review Board does not have jurisdiction and which was not the 9 — See, for example, Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others v Ente Nazionale Risi subject-matter of the initial proceedings. [1994] ECR I - 711, paragraph 17.

23. The order for reference nevertheless shows that the Procurement Review Board considered itself obliged to submit a refer- 25. In its first question the Procurement ence for a preliminary ruling due to the Review Board asks whether Article 2(2) of assertions made by the complainants. The Directive 93/36 (supply contracts) has an Procurement Review Board considers it a independent meaning. In its opinion this possibility that the tendering procedure question could be answered in the negative. could have been subject to procedural In this vein it argues that this provision was errors which would invalidate it. If the taken over from Article 2(3) of Directive provisions mentioned by the Procurement 77/62 and could, under certain circum- Review Board were found to provide that a stances, be understood in connection with tendering procedure pursuant to Directive the fact that, at the time of its adoption, no 93/36 should have been carried out, then Community-wide rules existed as to award- the Procurement Review Board would most ing public service contracts. The contested certainly be required to declare the proce- provision could thus have lost its meaning dure which had already taken place null when Directive 92/50 (service contracts) and void. However, because it is unsure as was adopted. However, the Procurement to the interpretation of Article 2(2) of Review Board holds the view that the fact Directive 93/36 in particular, the Procure- that the contested provision was main- ment Review Board has referred two ques- tained when adopting Directive 93/36 tions to the Court of Justice for a prelimin- could, on the other hand, speak in favour ary ruling. of its having an independent meaning.

26. The respondent, which expresses its be so in cases involving concession con- opinion on the questions referred to the tracts. One must thus, in the Commission's Court only in the alternative, also affirms opinion, assume that Article 2(2) has its the independent character of Article 2(2) of own independent meaning. Directive 93/36. It holds that comparisons with the original Directive 77/62 on the coordination of procedures for the award of public supply contracts demonstrate that this provision has constantly been retained despite several amendments. The respon- dent further holds that an analysis of the preparatory documents and drafts of Direc- tive 93/36 does not reveal that Article 2(2) was to have lost any of its independent character upon the adoption of Directive 92/50. The respondent argues that this provision is not only to be understood in 28. I essentially concur with the comments terms of 'reminiscing about old times'. made by the respondent and the Commis- sion. The provision contained in Arti- cle 2(2) of Directive 93/36 is to be found in a similar wording as early as in Directive 77/62, which was the first Directive on the coordination of procedures for the award of public supply contracts to be adopted. The contested provision is still to be found 27. In its submission the Commission in Article 2(3) of Directive 77/62. The only begins by stating that, on the basis of the amendment this provision has been subject facts as presented by the Procurement to over the years merely concerns the Review Board, both Directive 93/36 (sup- definition of what constitutes a contracting ply contracts) and Directive 92/50 (service authority. In its essence, the provision has contracts) could be applicable. According none the less remained unchanged. Thus, to the Commission the preparatory docu- pursuant to both provisions, the legal ments and drafts of Directive 93/36 show instrument by which a contracting autho- that this Directive was not meant funda- rity grants special rights to a body other mentally to change the previous Directive. than a contracting authority must stipulate Its adoption was necessary particularly in that the body in question is to observe the order to carry out amendments to Directive principle of non-discrimination on grounds 92/50, which were also introduced in of nationality when awarding public supply Directive 93/37/EEC. 10 That did not how- contracts. It may be true that Article 3(2) ever affect Article 2(2). Despite those mod- of Directive 92/50 (service contracts) con- ifications, it is still to be found in Directive tains a non-discrimination clause; however 93/36 and guarantees the principle of non- this clause only provides that contracting discrimination, even where Directive 92/50 authorities must ensure 'that there is no is not applicable. This would particularly discrimination between different service providers'. As can be deduced from its title, this Directive is, however, applicable 10 —Council Directive 93/37/EEC of 14 June 1993 on the particularly to public service contracts, coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54). whereas Directive 93/36 governs the pro-

29. It is nevertheless quite conceivable that cases might exist where, in addition to Directive 93/36 (supply contracts), Direc- 31. In its second question, the Procurement tive 92/50 (service contracts) could be Review Board requests an interpretation of applicable. That could apply in particular Article 2(2) of Directive 93/36 in the event where a contract that is to be awarded that it should have an independent mean- contains service as well as supply compo- ing. It enquires in particular as to the nents. Should, however, the contract's content of that provision and whether, first, emphasis be on the supply of goods, then a contracting authority must, when grant- Directive 92/50 would no longer be applic- ing special rights to a private undertaking able in such a case. The ban on discrimina- which is not a contracting authority, tion contained in Article 3(2) of Directive require that private undertaking to observe 92/50 would not apply. It is, however, in the principle of non-discrimination, and, such a case that the independent meaning second, whether Article 2(2) provides that of Article 2(2) of Directive 93/36 becomes the said private undertaking must apply the apparent. Another type of case is, however, procedure for the award of public con- conceivable, in which, although the award tracts. of public service contracts is involved, these could be awarded within the framework of a concession contract. Here also Directive 92/50 and the ban on discrimination con- tained therein would not be applicable; however such a case would still fall under the scope of Directive 93/36. Under cir- cumstances such as these, the ban on discrimination contained in Article 2(2) would again apply. 32. The respondent is of the opinion that a contract granting special rights must con- tain the non-discrimination provision con- tained in Article 2(2). This would ensure the application of the principle of non- discrimination even where a tendering 30. Due to the fact, however, that neither procedure pursuant to the directive was the preparatory documents nor the various not required. That would make it clear that drafts of Directive 93/36 indicate that the individuals are also required to comply provision contained in Article 2(2) was to with the principle of non-discrimination be deprived of an independent meaning, within the framework of tendering proce- one must assume that this provision is dures. The respondent further argues that meant to remain in force alongside Direc- Article 2(2) nevertheless does not require tive 92/50. an undertaking which has been granted

34. The first point I would make is that the provision in Directive 93/36 concerning tendering procedures is not applicable in the matter at issue here, in so far as Danske Slagterier are concerned. Nevertheless it is true that the threshold value contained in Article 5 of Directive 93/36 has been exceeded, so that, from the point of view 36. In the present case, the wording alone of contract volumes, it would normally be of Article 2(2) demonstrates that the con- applicable. However Danske Slagterier do tracting authority is only required, when not constitute a contracting authority. Nor granting special rights to a body, to ensure are the eartags in question sold on behalf that the prohibition against discrimination of, or for the benefit of, the Danish is not breached. This is intended to avoid authorities. No financial ties exist in this unequal treatment on the basis of nation- context between the eartag suppliers and ality in cases involving numerous tenderers. the authorities. Consequently, in so far as The directive's purpose is to achieve the the tendering procedure for the award of free movement of goods in the area of public supply contracts is concerned, the public supply contracts which are awarded directive is not applicable in a case such as in the Member States at the expense of the this. State, local or regional authorities, and other public bodies. It is to that end that the directive makes the award of public supply contracts by contracting authorities subject to a special procedure. The individual 35. However in order to guarantee the procedural conditions are set out in the application, beyond the Directive's actual individual provisions of the Directives. On scope, of the prohibition against discrimi- its own, however, Article 2(2) does not

(2) Where a contracting authority within the meaning of Directive 93/36/EEC grants special or exclusive rights to carry out public service activities to a body which is not a contracting authority, regardless of its legal status, then the legal instrument granting those rights shall provide that that body, when awarding public service contracts to third parties, must comply with the principle of non-discrimination on the basis of nationality. Article 2(2) does not place any further obligation on the contracting authority to ensure that that body, which is not a contracting authority, applies the procedure for awarding public supply contracts.

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