C-324/98

TELAUSTRIA AND TELEFONADRESS

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 18 May 2000 *

1. The essential question raised in this between contracts for the supply of services preliminary reference from the Bundes- and supply contracts, are also raised. vergabeamt (Federal Procurement Office, hereinafter 'the BVA'), Austria is whether public service concession contracts are excluded from the scope of Council Direct- ive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts 1 and Council Directive 93/38/EEC of 14 June I — The legal and factual background 1993 coordinating the procurement pro- cedures of entities operating in the water, energy, transport and telecommunications sectors. 2 If they are excluded, the further question of the determination of the scope of that exclusion arises. A number of other issues, such as whether those parts of a A — Community law contract that fall within the scope of Directive 93/38/EEC may be severed from those which do not and the distinction

2. The eighth recital in the preamble to Directive 92/50/EEC states:

(v) contracts for voice telephony, telex, radiotelephony, paging and satellite services ... .' (c) in the case of service contracts, any object other than those referred to in (a) and (b) and to the exclusion of:

3. The 24th recital in the preamble to Directive 93/38/EEC states:

'Whereas the provision of services is cov- ered by this Directive only in so far as it is based on contracts; whereas the provision (iii) contracts for arbitration and con- of services on other bases, such as law, ciliation services;

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(iv) contracts for the issue, sale, pur- chase or transfer of securities or other financial instruments;

seemingly not in the form of a concession) reasonable charge, as part of the universal was concluded in 1992, which expired at telephone service in Austria under Arti- the end of 1997. In view of the pending cle 24(1) and (2) of the TKA. The regula- expiry of that contract, the PTA proposed, tory authority is required, under Arti- by advertisement published on 15 May cle 26(1) of the TKA, to ensure that a 1997 in the Amtsblatt zur Wiener Zeitung global telephone directory, combining the (bulletin annexed to the Austrian Official information contained in the various indi- Journal), as well as in certain newspapers, vidual directories, is made available. 6Indi- to grant a concession to produce directories vidual operators are, moreover, required, and electronic databases of its subscribers. under Article 96(1), to produce a telephone The concessionaire would, in return for book, which may, inter alia, be in printed undertaking this obligation, be permitted and/or electronic form. profitably to exploit the concession, while the PTA would take a 40% stake in the company to be set up by the concessionaire for that purpose. The concession was shortly afterwards awarded to Herold Business Data AG ('HBD'), which would appear to be a corporate successor in law of 6. The applicants in the main proceedings, the company which had been awarded the Telaustria and Telefonadress, took the view initial 1992 contract. 4 The concession was that the procurement procedures prescribed later concluded on 15 December 1997. by the Community and Austrian legal provisions on public service contracts should have been applied to the contract in question. Following separate but subse- quently joined applications made by the applicants for an arbitration procedure under Article 109 of the Bundesvergabege¬ setz (Federal Procurement Law, hereinafter the 'BVerG'), 7 an advisory opinion in their favour was issued by the Bundes-Vergabe- 5. On 1 A u g u s t 1 9 9 7 , the Tele- kontrollkommission (Federal Procurement kommunikationsgesetz (Telecommunica- Review Commission), which concluded, on tions Law, hereinafter the 'TKA') entered 20 June 1997, that the BVerG rules were into force. 5 Article 19 of the TKA requires applicable. each provider of a public oral-telephone service to maintain, inter alia, an up-to- date telephone list of subscribers, informa- tion about its subscribers' numbers and a directory, available at least weekly, in a readable electronic form on request to the regulatory authority established under that 7. The PTA chose not to comply with this Law. Users are to have access to this recommendation but continued negoti¬ information, which must be available at a

8. The order for reference states that the TKA applies to the contract concluded between the PTA and HBD. On its estab- lishment as a corporation, the PTA became a 100% publicly owned company. It is 10. The second part of the contract con- under the control of the Austrian author- cerns the production of printed telephone ities and, in the BVA's view, constitutes a directories, which are described as being public undertaking for the purposes of services in 'category 15, "Publishing and Article 2(1)(a) of Directive 93/38/EEC printing services on a fee or contract basis", and, therefore, also a contracting entity for the purpose of Annex XVI A of Direc- for the purpose of that Directive. tive 93/38/EEC'. The final part of the contract described by the BVA comprises 'services within CPC No 871, "Advertising services", which are thus services within the meaning of category 13 of Annex X- VI A of Directive 93/38/EEC'. In the BVA's opinion, the proportion of services listed in Annex XVI A of Directive 93/38/EEC out- 9. The BVA describes the impugned con- weighs those in Annex XVI B, so that that tract as involving '... several — partly interlocking — contracts of differing con- tent but between the same parties'. It states 8 — The 'CPC' is tin· United Nations Central Product Classifica- that the subject-matter of the printing tion. As for the relevance of the 'CPC', see, in particular, paragraphs 10 and 32 et seq. of my Opinion and para- contract 'is the production of printed graphs 38 and 39 of the judgment in Case C-76/97 Tögel v Niederösterreichische Gebietskrankenkasse [ 1 9 9 8 ] telephone directories'. ECR I-5357.

May those categories of contracts excluded 'Principal question: from the scope of Directive 93/38/EEC be adequately described, by analogy with Commission proposal COM (90) 372, as having as their essential feature that a contracting entity which falls within the scope ratione personae of Directive 93/38/EEC cedes a service for which it is Can it be inferred from the legislative responsible to an undertaking of its choice history of Directive 92/50/EEC, in particu- in return for the right to operate the service lar the proposal of the Commission (COM concerned for financial gain?; (90) 372 final, OJ 1991 C 23, p. 1), or from the definition of the term "public service contract" in Article 1(a) of Direc- tive 92/50/EEC, that certain categories of contracts concluded by contracting author- ities subject to that directive with under- Supplementary to the first three questions: takings which provide services are to be excluded a priori from the scope of the directive, solely on the basis of certain common characteristics as specified in that proposal of the Commission, without the need to rely on Article 1(a)(i) to (viii) or Is a contracting entity which falls within Articles 4 to 6 of Directive 92/50/EEC?; the scope ratione personae of Directive

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If that question is answered in the affirm- ative: Is the contractual concession of the exclusi- ve right to operate a service for financial gain, which will give the service provider an income which cannot be determined but which in the light of general experience will not be inconsiderable and may be expected to exceed the costs of providing the service, Is the judgment of the Court of Justice in to be regarded as payment for the provision Case C-3/88 to be interpreted as meaning of the service, as the Court of Justice held in that such a supply contract is to be severed Case C-272/91 10 in connection with a from the other components of the service contract and made the subject of a pro- curement procedure under Article 1(7) of 9 —See Commission v Italy [1989] ECR 4035 (hereinafter Directive 93/38/EEC, in so far as this is 'Data-processing'). 10 —See Commission v Italy [1994] ECR I-1409 (hereinafter technically possible and economically reas- 'Lottomatica'). onable?'

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OPINION OF MR FENNELLY — CASE C-324/98

I I — Observations and how are such concessions to be defined?;

12. Written observations have been sub- mitted by Telaustria, the PTA, the Kingdom of Denmark, the Kingdom of the Nether- lands, the French Republic, the Republic of Austria and the Commission. All of these, save Denmark and the Netherlands, also presented oral observations. (iv) If the relevant advertising rules of the Community procurement directives are not applicable, what, if any, publicity requirements would flow from the application of general Treaty prin- ciples?;

A — Directive 92/50/EEC or Directive the only provider of such services active on 93/38/EEC the Austrian market, the BVA has itself described the PTA's 'tasks' as including 'the provision and operation of public telecom- munications networks and the offering of public telecommunications services'. It is, 14. If Directive 93/38/EEC were applicable as the Commission submits, clearly a to a contract such as that between the PTA sectoral contracting entity. It is common and HBD it would be unnecessary to case that the production of both physical provide any specific answer to the first and electronic telephone directories is question referred by the BVA. It is therefore directly related to the provision of those appropriate, in my view, to consider first services. the possible applicability of the sectoral directive before examining other more general directives. However, even if Direct- ive 93/38/EEC were alone applicable in the present case, it would not preclude con- sideration of other Community public pro- curement rules for the purposes of assisting in the interpretation of that Directive. 16. The BVA has itself provisionally taken the view that the services involved in the contract between the PTA and HBD, viewed as a whole, fall within the scope of Directive 93/38/EEC, and, more parti- cularly, that it should be regarded as being 15. It is clear from the order for reference a 'supply' contract for the purpose of that the PTA, as a publicly owned tele- Article 15 thereof. In order to determine communications-services provider, falls, in whether the contract at issue comes within principle, to be considered as a contracting the material scope of Directive 93/38/EEC, entity for the purpose of Article 2(1) of there is nothing in the information avail- Directive 93/38/EEC. Support for this view able to the Court that would call into may also be derived from the 13th recital in question the BVA's assessment that, but for the preamble to that Directive, which states the fact that it may be excluded by reason that its scope 'should not extend to activ- of constituting a concession, the contract ities of those entities ... which fall outside should be considered to fall within the the telecommunications sector'. Directive scope of that Directive. In my opinion, it is 93/38/EEC only applies, in accordance unnecessary, for the purpose of answering with its Article 2(1), where a contracting the questions referred, to take a view on entity exercises 'one of the activities re- whether it would constitute a 'supply' or ferred to in paragraph 2', which include 'service' contract. This is because, if a 'the provision or operation of public tele- contract like that at issue in the main communications networks or the provision proceedings may be considered to be a of one or more public telecommunications supply or a service contract within the services ...'. 1 2While it may no longer be meaning of Article 1(4) of Directive 93/38/EEC, then the publicity rules pre- scribed by either Article 15 or 16 of that- 12 — Sec Article 2(2)(d), quoted fully in paragraph 3 above. Directive would apply.

17. I do not agree with the PTA that the in writing between one of the contracting services which fall within the scope of entities referred to in Article 2, and a Directive 93/38/EEC are only those which supplier, a contractor or a service provider', occur at the end of a long chain of services and which have as their object (see Art- and which, in so far as the present case is icle 1(4)(ii)) 'voice telephony... services'. concerned, relate directly to the actual Accordingly, I am satisfied that the BVA has provision of voice-telephony services. It c o r r e c t l y assumed t h a t Directive emerges clearly from the 17th recital in 93/38/EEC is, in principle, the applicable the preamble to Directive 92/50/EEC that directive in the present case. The issue the provisions of that Directive were not raised by the second, third and fifth ques- intended to affect the predecessor to Direct- tions (as well as indirectly by the first ive 93/38/EEC; in other words, where a question) should therefore be interpreted as contract falls within the scope of the being whether the concession nature of the sectoral Directive, the more general provi- contract between the PTA and HBD pre- sions of Directive 92/50/EEC are inapplic- cludes the application of Directive 93/38/ able. While the services included within the EEC. In reality, this is the core issue in this scope of the latter are listed, inter alia, in case. Annex I A to the Directive and include 'telecommunications services' (category 5), it is clear from the footnote accompanying that category that voice-telephony services are excluded. Only a very narrow interpre- tation of the scope of Directive 93/38/EEC would justify the PTA's view that a contract concerning the production of telephone directories is insufficiently related to the provision of voice-telephony services for B — The exclusion of public service that Directive to be applicable. In my view, concessions such a narrow construction is miscon- ceived. It is particularly relevant, as noted in the order for reference, that category 15 of Annex XVI to Directive 93/38/EEC expressly includes 'publishing or printing services' as being among the services cov- 19. The applicants submit that public ser- ered by the publicity procedures required vice concessions should not be viewed as under Article 15. falling outside the Community procure- ment rules because such an interpretation would subject those rules to the variation in the activities that are considered to be public activities in the various national laws. The need to interpret exceptions from the scope of the public procurement rules narrowly precludes such an exception. Alternatively, if concessions are excluded, 18. Moreover, Article 1(4) of Directive there must be a genuine transfer of an 93/38/EEC describes, inter alia, the service activity that is in the public interest for it to contracts covered by that Directive as being comprise a public service concession. This, 'contracts for pecuniary interest concluded they allege, is not the case as regards the

21. In my view, it is perfectly clear that the Council rejected the Commission's propo- sal to include concessions within the scope of Directive 92/50/EEC. In its initial pro- posal, submitted on 13 December 1990, 'public service concessions' were distin- 14 — Amended proposal for a Council Directive relating to the guished from 'public service contracts' in coordination of procedures on the award of public service Article 1(a)(vi), defined in Article 1(a)(h) contracts, COM(91) 322 final, OJ 1991 C 250, p. 4. 15 — D o c u m e n t N o 4444-92-ADD-1 of 25 February 1992. and subjected to the publicity rules of the Essentially, the Council felt that the differences between proposed directive by Article 2. 1 3 Apart the various national laws on such concessions were too great so that the impact of adopting the proposal would from a more developed definition of a not be the same in all Member States. In us written observations, Austria points out that that opposition was motivated by the fact that in some Member States concessions were only granted by public (administrative) acts which would therefore have fallen outside the 13 — Proposal for a Council Directive relating to the coordina- Commission's proposed definition which was based on tion of procedures on the award of public service concessions being granted pursuant to consensual con- contracts, COM(90) 372 final, OJ 1991 C 2 3 , p. 1. Special tracts governed by private law. This was recognised, if rules dealing with the situation where a concessionaire is a regretted, by the Commission itself in its communication contracting authority were set out in Article 3 of the to the European Parliament concerning the common proposal. position; see SEC(2) 406 final of 5 March 1992.

22. It is in this light that I interpret the aid to construing the text of the Directive as failure of the Commission even to propose finally adopted by the Council. the inclusion of public service concessions in its proposal, submitted on 27 September 1991, for what became Council Directive 93/38/EEC to be significant.16 More sig- nificant still, however, is the fact that in its amended proposal for what became the predecessor directive to Directive 93/38/EEC — namely, Council Directive 90/531/EEC of 17 September 1990 on the

. . detailed study of the diverse forms of public and an awarding authority' which were service concessions accorded in the Mem- subject to it. 20 In 1989, Council Directive ber States in respect of the water, gas and 89/440/EEC of 18 July 1989 amending electricity sectors. 19 This assessment of the Directive 71/305/EEC concerning the coor- legislative history clearly demonstrates that dination of procedures for the award of the silence of Directive 93/38/EEC in public works contracts adopted a definition respect of concessions was intentional and of 'public works concession' (see the new clearly designed to exclude them. In the Article 1(d) inserted by Article 1(1) of present case, it therefore provides a clear Directive 89/440/EEC) and included 'advertising rules' to be applied to the award of such concessions (see the new Article lb inserted by Article 1(2) of Direct- ive 89/440/EEC). 21 This is highly signifi- cant because, for the first time, the Com- munity public procurement rules expressly addressed the phenomenon of concessions. At the time of the award of the contract at 16 — Proposal for a Council Directive amending Directive 90/531/EEC on the procurement procedures of entities issue in the main proceedings, the relevant operating in the water, energy, transport and telecommu- provisions were those contained in the nications sectors, C0M(91) 347 final, OJ 1991 C 337, p. 1. consolidated directive which replaced 17 — OJ 1990 L 297, p. 1. Directive 71/305/EEC, namely Council 18 — Amended proposal for a Council Directive on the procure- ment procedures of entities operating in the water, energy, Directive 93/37/EEC of 14 June 1993 con- transport and telecommunications sectors; see COM(89) 380 final, OJ 1989 C 264, p. 22. 19 — See point 10 of Council Document No 5250/90 of t 22 March 1990, MAP 7, PRO-COOP 28, a copy of which

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TELAUSTRIA AND TELEFONADRESS

cerning the coordination of procedures for the legislative history were to be over- the award of public works contracts. 22 looked, a contextual construction of the This Directive was adopted on the same notion of pecuniary interest, which would day as Directive 93/38/EEC. It is, therefore, be necessary given that it is not defined in to my mind obvious that if the Council had Directive 93/38/EEC, would exclude con- wished to include public service concession cessions. within the scope of Directive 93/38/EEC it would have done so expressly, as it did when adopting Directive 93/37/EEC. The only reasonable inference to be drawn from its omission to do so is that which has already been drawn by Advocate General 25. It follows, in my opinion, that the La Pergola in his Opinion in Arnhem and Court should rule that 'public service Rheden, namely that Directive 93/38/EEC concessions' do not fall within the scope 'covers only service contracts'.13 of Directive 93/38/EEC.

C — The scope of the notion of public service concessions

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29. In the first place, it is important to bear 24 — It thus largely replicated the earlier definition of what was excluded from the notion of 'contracts for pecuniary in mind that 'public service concessions' are interest concluded in writing' by Article 3(1) of Directive 71/305/EEC. not covered by Directive 93/38/EEC. I do 25 — The advertising rules applicable to such 'contracts' were not therefore accept, as the applicants have prescribed by the new Article 1b inserted into the Directive submitted, that it is necessary to interpret 71/305/EEC by Article 1(2) of Directive 89/440/EEC. 26 — See Article 1(d) and the fifth recital in the preamble to the their scope narrowly. They do not consti- Directive.

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involved. If the national court is satisfied 32. Reference was made at the hearing to a that the economic burden or risk has draft communication from the Commission effectively been passed to the concessio- on the interpretation in Community law of naire by the grantor of the concession, then public procurement concessions. 28 In that there must be a very strong presumption communication, to which various refer- that the 'arrangement' concluded between ences were made at the hearing, the Com- them amounts to a concession rather than a mission sets out a number of illustrations of contract. circumstances which had come to its atten- tion but which, in its view, did not satisfy the requirement that the risk be borne by the concessionaire. 29 Thus, where, for example, the public authorities effectively guarantee to indemnify the concessionaire against future losses, or where there is no effective exploitation by the concessionaire of the service whose performance is ceded, the Commission submits that the 'arrange- ment' at issue could not amount to a

concession. In response to an argument an 'important feature of service concessions in the raised by France in its observations that the Community context |is| that the concessionaire auto- matically assumes the economic risk associated with the contracts at issue in that case (which provision and management of the services that are the subiect of the concession'; paragraph 26 of his Opinion concerned a joint venture between two emphasis added). Dutch municipalities to provide municipal 28 — At the date of the hearing (23 March 2000) a draft proposal only had heen published on the Internet; see the refuse-collection and road-cleaning services Projet de communication interprétative de la Commission through ARA, a company set up expressly sur les concessions en droit communautaire des marchés publics', DG XV XV/B — 24 February 1999 (http://euro¬ for that purpose) could be regarded as a pa.eu.int/comm/internal_market/en/pun/publproc/general/ conefr.pdf.), which was seemingly available only in French. public service concession, the Court However, it has since (29 April 2000) been published as an interpretative communication in the Official Journal; see declared, without finding it necessary to OJ 2000 C 121, p. 2. interpret that term, that it was clear from 29 — See footnote 10, in particular, of the communication.

there is no overriding definition of a 'public with the contractual relationship'. 3 3 services concession'. All that is clear, as Although I would not reject entirely the Lottomatica and Arnhem and Rheden potential assistance which may be derived reveal, is that where the remuneration is from this factor in certain borderline cases, fixed or determinable the arrangement it would seem to me to add little to the should be viewed as contractual and fall- requirement that the concessionaire effect- ing, prima facie, within the scope of the ively obtain at least a significant proportion relevant procurement directive. In Lotto- of its remuneration not from the granting matica, the Italian State had published a entity but from the exploitation of the contract notice for the purported 'conces- service.

Indeed, such a situation duction of the computerised system in would approximate to the facts of Lotto- question does not involve any transfer of matica, where the only customer of the responsibilities to the concessionaire in purported concessionaire was clearly the respect of the various operations inherent public administration responsible for con- in the lottery' and that it was 'common ducting lotteries in Italy. ground that the contract at issue relate[d] to the supply of an integrated computerised system including in particular the supply of certain goods to the administration'. 31 The fact that the system was only to become the property of the administration at the end of the contractual relationship with the ten- derer was 'irrelevant', because the '"price" for the supply [took] the form of an annual payment in proportion to revenue'. 32 It is, therefore, necessary in each case to look at 34. There is less consensus in the observa- a number of factors which will indicate tions submitted regarding the relevance of whether in reality the arrangement between the public interest nature of the service the parties amounts to a written contract ceded. In his Opinion in Arnhem and for a pecuniary interest in respect of the Rheden, Advocate General La Pergola provision of services. There is a general expressed the view that '[u]nder Commun- consensus in the observations as to the ity law, the service that is the subject of a relevance of the other criteria cited by service concession must also be in the Advocate General La Pergola in his Opin- general interest, so that a public authority ion in Arnhem and Rheden, to wit that 'in is institutionally responsible for providing the case of a concession, the beneficiary of it'. 3 4 He went on to say that '[t]he fact that the service is a third party unconnected a third party provides the service means that the concessionaire replaces the author- ity granting the concession in respect of its obligations to ensure that the service is

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provided for the community'. 35 Contrary the public' should, save in the broadest- to the applicants' submission, I would not sense of the word, be construed as requiring read the judgment in Data-processing as that it be one that is in the 'general' interest. supporting this view. The reference to On the contrary, it seems to me that it 'public service' in that case was related to should merely refer to the fact that the the Court's rejection of Italy's plea in that typical intended beneficiaries of a genuine case that the development of the data- 'public service concession' will be third- processing systems for the performance of party members of the general public or a certain public activities was in itself a particular category of that general public. I public service activity which was excluded certainly do not consider that it is necessary from the scope of Directive 77/62/EEC.36 for the service at issue to be capable of The Court held that neither the supply of being regarded as a service of general the equipment required nor the design of economic interest in the sense in which the system itself, although 'enabl[ing] the that notion has been interpreted for the authorities to carry out their duties [,] ... in purposes of applying Article 90 of the EC themselves constitute[d] a public service'. 37 Treaty (now Article 86 EC). 39 In other words, there should, in my opinion, be no qualitative bar to the sorts of service that a contracting entity may legitimately seek to award by way of concession, although it is likely that there will be a public interest in most of the services that are awarded in that manner.

borne out by the fact that, at the hearing, ral of a right to exploit a particular service the Commission accepted that there was no as well as the simultaneous transfer of a clear definition of public interest in Aus- significant proportion of the risk associated trian law and that it must be left to the with that transfer to the concessionaire. national courts to determine its scope. Acceptance of such a principle would, of course, be a recipe for the non-uniform application of Directive 92/50/EEC, with certain national courts taking the view that the Directive applied to concessions because the subject-matter of the service ceded was not capable of being regarded as falling within the public interest of the 38. In their observations the applicants relevant Member State. It should be have advanced various arguments which avoided. In any event, it is unnecessary to seek to demonstrate that, in reality, the PTA adopt any final view on this matter in the is providing consideration to HBD. In the present case because I agree with the context of a preliminary reference, it is not submission made by the PTA at the hearing for this Court to make any findings in this that, once the performance of an obligation respect which remain exclusively a matter has been imposed by public law — as that for the court or tribunal which has referred at issue in the present case has by virtue of the case. However, as it emerges clearly Articles 26(1) and 96(1) of the TKA —, its particularly from the BVA's fifth question performance may be deemed to be in the that it entertains doubts as to the degree of public interest of the Member State con- economic risk that must be borne by a cerned. It should also be irrelevant whether concessionaire, it may be of assistance to it the awarding entity is the only entity or to consider briefly some of the allegations merely one of a number of entities which is made by the applicants. They assert that subject to the obligation in question and the grant to HBD of the right to use the whether overall responsibility for ensuring PTA logo is of considerable economic the performance of the obligation is value. This coupled with the facts that all imposed upon a regulatory authority. of the cost factors involved for HBD are relatively easy to determine in advance and that the possibility of selling advertising space in the directories amounts, as was asserted at the hearing, to 'a real gold-mine' gives the lie, in the applicants' view, to the claim that HBD undertook any real eco- nomic risk.

paragraph 16 of the contract expressly economic operators. The requirement confers the responsibility of producing the imposed on HBD to use the PTA's logo is directory on HBD. It submits that it has clearly of economic benefit to the PTA. The licensed HBD, in return for payment, to use mere fact that it might also benefit HBD its data for the purpose of producing that does not render the concession into a directory. However, this licence is not contract since the extent of that benefit is different from that which it would be not quantifiable in advance. willing to grant to any other economic operator who wished to exploit that infor- mation. As regards the logo, it has not authorised HBD to use its trade mark but has in fact obliged it to do so. This is an arrangement which is for its benefit because it profits from certain free and advantageously placed advertising in the D — General Treaty requirements directory. Moreover, the fact that the PTA has paid for the acquisition of a share- holding in HBD, which transaction is wholly independent of the concession, cannot be regarded as consideration paid 41. It is common case in the observations to the latter in respect of that concession. submitted to the Court that, even if the grant of 'public service concessions' falls outside the scope of Directives 92/50/EEC and 93/38/EEC, the awarding authorities are, none the less, bound to respect the Treaty. It is also accepted that Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) would, in particular, preclude all direct and indirect discrimination based on national- ity. In other words, awarding authorities must respect the principle of equal treat- 40. In my view, the mere fact that there is a ment between tenderers. They must also likelihood that the concessionaire will be ensure that no conditions are imposed on able beneficially to exploit the concession the tenderer that would, in themselves, would not suffice to permit a national court amount to an infringement of, for example, or tribunal to conclude that there is no Article 30 of the EC Treaty (now, after economic risk. To my mind, a national amendment, Article 28 EC). It is not sub- court or tribunal would need to be satisfied mitted in this case that any of those Treaty to a high degree of probability that the provisions have, at least directly, been possibility of loss was minimal or even non- infringed. existent. Although it is for the BVA in the present case to make that determination, I am unconvinced that assertions such as those made by the applicants satisfy the test of no real or effective risk. HBD has to pay for the use of the data, which data could be 42. The Commission, however, asserts that obtained on the same terms by other entities awarding 'public service conces-

44. In any event, in the present case, there can be little doubt that a sufficient degree of transparency was respected. The offer was published in the Austrian Official Journal, in some of the Austrian news- 43. I consider that substantive compliance papers and in certain leading international with the principle of non-discrimination on newspapers. Moreover, it is not suggested grounds of nationality requires that the that the information published in the latter award of concessions respect a minimum differed from that published in the former. I degree of publicity and transparency. I would conclude that this degree of pub- agree with the Commission that what must licity prima facie satisfied the requirement at all costs be avoided is that their grant be of transparency. The applicants, however, shrouded in secrecy or opacity. I also accept submit that, in the absence of publication the point made by the agent for Austria of the results of the pilot programme run that publicity should not necessarily be under the earlier contract with HBD's predecessor between 1992 and 1997, it was impossible for any tenderer other than 40 — Case C-275/98 [1999] ECR I-8291. HBD effectively to tender for the proposed 41 — Paragraph 31. concession. The accuracy of this assertion

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46. In reality, the BVA wishes to know 42 — Loc. cit., footnote 11 above. 43 — Case 0 3 3 1 / 9 2 [1994] ECR I-1329; see in particular whether a contract which could be classi- paragraphs 25 to 27. fied as containing a supply element, to wit 44 — Ibid., paragraph 28.

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IV — Conclusion

47. In the light of the foregoing, I propose that the questions referred by the Bundesvergabeamt be answered as follows:

(1) The provision or operation of public telecommunications networks or the provision of one or more public telecommunications services for the purposes of Article 2(2)(d) of Council Directive 93/38/EEC includes contracts con- cerned with the production of telephone directories;