C-223/99

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Body governed by public law means lists shall be as exhaustive as possible and any body: may be reviewed in accordance with the procedure laid down in Article 30b of that Directive;

...' — established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and

B — Italian implementing legislation

— having legal personality and 3. Directive 92/50 was implemented in Italian law by Decree-Law No 157 of 17 March 1995 (hereinafter 'Decree-Law No 157/95'). 4 The concept of a 'body governed by public law' was adopted from Directive 92/50 in Article 2 of the Decree- Law. — financed, for the most part, by the State, or regional or local author- ities, or other bodies governed by public law; or subject to manage- ment supervision by those bodies; or having an administrative, man- agerial or supervisory board, more than half of whose members are C — Articles of association of the Ente appointed by the State, regional or Fiera local authorities or by other bodies governed by public law. 4. The Ente Fiera was established in the early part of the 20th century in the form of a committee under private law. Its capital was for the most part provided by private businessmen. By Royal Decree No 919 of 1 July 1922 the Ente Fiera was transformed The lists of bodies or of categories of such into a private-law legal person. bodies governed by public law which fulfil the criteria referred to in the second subparagraph of this point are set out in 4 — Gazzetta Ufficiale della Repubblica Italiana (hereinafter Annex I to Directive 71/305/EEC. These 'GURI') No 104 of 6 May 1995.

1. The objects of the Ente Autonomo Fiera Internazionale di Milano (hereinafter "Ente") having its seat in Milan, Largo Article 3 — Means of pursuing its objects Domodossola Nr. 1, established by Royal Decree No 919 of 1 July 1922, declared Ente Fieristico Internazionale by Decree of the President of the Republic No 616 of 24 July 1977, are to carry on and facilitate any activity concerned with the organisa- 1. The Ente shall pursue the objects for tion of fairs and conferences and any other which it was created using the proceeds initiative which, by fostering trade rela- arising from carrying on its activities, from tions, promotes the presentation of the administration (including special adminis- production of goods and services and if tration) and management of its assets and possible their sale. The Ente is a non-profit- from contributions by legal or natural making body and carries on activities in the persons. public interest. Its operations are governed by the principles of the Civil Code.

2. Management of the Ente shall be based on the criteria of performance, efficiency and cost-effectiveness. Under Article 5 of the articles of associa- tion, the President of the Ente Fiera is appointed by order of the President of the Republic and the Vice-Presidents and Secretary-General by order of the Minister 3. The Ente may effect any operations not for Industry (Article 10 of the articles of prohibited to it by law or its articles of association).

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Under Article 6, more than half of the accordance with Article 25 of Italian Law Consiglio Generale, which is responsible No 241 of 7 August 1990 5to the Ente for making the Ente Fiera's fundamental Fiera. In it, Agorà requested the Ente Fiera decisions (see Article 7 of the articles of to send it the documents concerning the association), are representatives of the award of a contract for the hire of fixtures central State, of the region of Lombardy, and fittings for reception areas and informa- of the province of Milan and of the city of tion points, which had been referred to in Milan, the other members being represent- an award notification of 2 August 1997. atives of industry and of the employees.

accordingly remitted the case to the court 12. The Ente Fiera produced the latter referring the question. decision of the Consiglio di Stato as appendix 3 to its memorandum of 5 November 1999. The Consiglio di Stato based its classification of the Ente Fiera on the fact that the indirect promotion of commerce, which followed from its activity as an organiser of fairs, was not sufficient for a finding of needs in the general interest 10. By a document of 19 October 1998, 'not having an industrial or commercial' Agorà applied anew for its claim to be character. Though the activity of the Ente upheld. It argued that a reference to the Fiera promotes the general interest, in the Court for a preliminary ruling was appro- same way as, for example, banking facil- priate in respect of the disputed question on ities and telecommunications services are the applicability of the rules on public provided in the general interest, the organ- service contracts. isation of fairs is an essentially commercial activity connected with the marketing and distribution of goods and services which complements manufacturing by business. 6

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B — Facts of Case C-260/99 the temporary award of the cleaning ser- vices concerned to C.I.F.T.A.T. and the renewed invitation to tender in the Official Journal of 7 March 1998 in respect of the 14. By an announcement published in the same services before the national court. Official Journal of the European Commun- ities of 29 July 1997, the Ente Fiera issued a restricted invitation to tender. It con- cerned the award of cleaning services in respect of its exhibition premises for the period 1 January to 31 December 1998 with the possibility of a two-year exten- sion. 18. The Ente Fiera raised as a defence to the action that the courts of administrative jurisdiction had no jurisdiction to decide the questions in issue. It stated as its reason that it was not a 'body governed by public law' and therefore was not bound to 15. Excelsior s.n.c. (hereinafter 'Excelsior') observe Community or national rules on participated in the procurement procedure the award of public contracts. for areas 2 to 5. At the end of the procedure, the third area was awarded to Consorzio Miles. The latter was in third place on the award list; the first two applicant firms were rejected by the Ente Fiera. Excelsior was in fifth place on the list. 19. The national court considers the ques- tion whether the Ente Fiera is to be deemed a 'body governed by public law' within the meaning of Article 1(b) of Directive 92/50 16. Thereafter, the Ente Fiera cancelled the to be decisive in order to determine which award of the contract to Miles owing to a court is competent. serious breach. For the period 13 February to 30 June 1998, the contract was tem- porarily awarded to C.I.F.T.A.T., which in the earlier procedure had been placed seventh on the list. On 7 March 1998, a new invitation to tender in respect of the area in question was published in the Official Journal of the European Commun- ities for the period 1 July to 31 December IV — Questions referred and proceedings 1998, with the possibility of an extension before the Court for a further two years.

22. The plaintiff in the main proceedings in Case C-223/99, Agorà, submits that the Ente Fiera meets 'needs in the general interest'. This follows both from its articles of association, and from the national 26. Moreover, the State's right of super- legislation, which regulate its tasks and vision over the Ente Fiera's activities pre- activities. Organising fairs is of general vent it from operating according to purely interest and is of use to a group of persons economic considerations on the market. so large that it may be equated to the The State's control of the organisation of entirety of the population. fairs in general means that fair companies

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29. The plaintiff in the main proceedings in 31. The Ente Fiera first of all disputes the case C-260/99, Excelsior, takes the view admissibility of the request for a prelimin- that the concept of a 'body governed by ary ruling in Case C-223/99. The main public law' must be defined in a manner dispute concerns the applicability of the consistent with the purpose underlying the Italian transparency rules only, not that of European public procurement rules. These the Community rules on public procure- are intended to prevent the relevant Mem- ment. Whether or not the Ente Fiera is ber State from favouring national compa- classified as a 'body governed by public nies over companies from other Member law' for the purposes of Directive 92/50 is States. In order not to undermine that therefore immaterial to the question in purpose, the concept of a 'contracting issue in the main proceedings relating to authority', which determines the scope of the right of access to public documents. application of the relevant provisions, is not defined restrictively; instead, the flex- ible notion of a 'body governed by public law' was introduced.

30. Excelsior argues that it is the 'needs in 32. As regards the answer to the question the general interest' which must not be referred, the Ente Fiera advances the view

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37. The Commission in its observations expresses doubts as to whether the Ente Fiera does in fact meet needs in the general interest. Its specific object is to promote the 34. Moreover, the Ente Fiera operates in interests of a defined group of persons, competition with an ever increasing num- ber of other participants in the market. According to the case-law, this is a further 8 — OJ 1998 C 143, p. 2.

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42. The Commission also refers to its Interpretative Communication already 40. The distinguishing features of the Ente cited. It confirms that the Ente Fiera carries Fiera's activities and the way in which it out a remunerative activity in a context functions also lead the Commission to the characterised by competition.

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VI — Opinion 45. The extent to which the question referred for a preliminary ruling is neces- sary for the decision in the main litigation is in principle a matter to be determined by the national court alone and is not exam- ined by this Court. 10 There is a possible exception to this principle where there is A — Admissibility of the reference for a manifestly no connection between the preliminary ruling in Case C-223/99 question referred and the main proceedings or where the question is general or hypo- thetical in nature. 11 However, the question referred in Case C-223/99 cannot be said to be inadmissible on those grounds. The 43. No concerns were raised as to the national court stated in the order for admissibility of the reference for a prelim- reference that the question whether the inary ruling in Case C-260/99. However, Ente Fiera is bound by the Italian trans- the Ente Fiera claims that the reference in parency rules at issue in the main proceedings Case C-223/99 is inadmissible, because the depends on its possible classification as a question referred concerns the interpreta- 'body governed by public law' within the tion not of Community law but of Italian meaning of Article 1(b) of Directive law. 92/50. 1 2The reference for a preliminary ruling in Case C-223/99 is therefore admis- sible.

and have been established for the specific of the articles of association). The manage- purpose of meeting needs in the general ment of the Ente Fiera is therefore desig- interest, not having an industrial or com- nated by the State and other regional or mercial character. According to the case- local authorities. Moreover, the Ente Fiera law, these conditions are cumulative. 13 is, pursuant to Article 15 of its articles of association, subject to the control of the Minister for Industry and, under Art- icle 16, can even be liquidated by him or her. To this extent its management too is 1. Legal personality of the Ente Fiera subject to State supervision. In the light of the decision in Conminara Machine Turf in particular, according to which even the possibility of indirect control by the State is sufficient, 1 4there can be no doubt about this. The powers of central government in 47. The Ente Fiera was transformed by respect of the Ente Fiera were admittedly Royal Decree of 1 July 1922 from an transferred by Decree of the Council of initiative ('iniziativa') into a legal person Ministers of 7 July 1999 15to the govern- ('ente morale'). It has legal personality by ment of the region of Lombardy. But the virtue of the rules in the third sentence of latter is also a regional authority, and the Article 1(1), Article 1(3), and Article 3 of management organs of the Ente Fiera are its articles of association in conjunction thus still appointed by regional or local with the Royal Decree. The condition in the authorities and its activity controlled by second indent of Article 1(b) of Directive them within the meaning of the third indent 92/50 is thereby fulfilled. of Article 1(b) of Directive 92/50.

54. The Court does not appear in its case- 51. According to Article 1 of the articles of law on public procurement hitherto to have association, the objects of the Ente Fiera '... considered the extent to which the organ- are to carry on and facilitate any activity isation of fairs is an activity in the general concerned with the organisation of fairs interest. The following duties have so far and conferences and any other initiative been recognised as being in the general which, by fostering trade relations, pro- interest: the issue of official documents motes the presentation of the production of such as passports, driving licences and goods and services and if possible their identity cards, 16 the collection and treat- sale'. It follows that the Ente Fiera was ment of household refuse, 1 7 themainten- founded for the purpose of organising fairs ance of national woods and of a forestry and conferences. What is in question is industry 1 8and the running of a univer- whether this is a need in the general sity. 19 In addition, Advocate General interest. 16—Judgment in Case C-44/96 Mannesmann Anlagenbau Austria ami Others [1998] ECR I-73, paragraph 24. 17 —Judgment in Case C-360/96 (cited in footnote 13), para- graph 52. 18 — Judgments in Case C-353/96 Commission v Ireland [1998] 52. The first point supporting the argument ECR I-8565, paragraph 37 and in Case C-306/97 (cited in that we are dealing with needs in the footnote 14), paragraph 32. 19 — Judgment in Case C-380/98 University of Cambridge general interest is the wording of the [20001 ECR I-8035, paragraph 19.

55. The examples cited in fact relate to situations where the general public in principle has access. However, there are certain services, such as for example 56. We may therefore assume by way of an attendance at university, that can only be initial conclusion that the Ente Fiera meets taken up by certain persons, namely those needs in the general interest. who satisfy the conditions for admission. Similarly, flats in the social housing sector are only allocated to those in need. If one compares these activities to the organisa- tion of fairs, it can be seen that fairs, too, are sometimes only open to a certain (b) Type of needs met category of the public, as, for example, in the case of trade fairs. But anyone who satisfies the conditions laid down by the organiser — so, say, anyone who operates in the sector of the economy to which the fair relates — can exhibit. Contrary to the 57. Lastly, in order for the Ente Fiera to be view of the Commission, it does not appear classified as a body governed by public law, to be justified to deduce from the fact that the needs met by it must 'not [have] an direct users of fairs are a limited group that industrial or commercial character'. The the organisation of fairs does not serve the real dispute between the parties in the main general interest. Thus, just as the general proceedings revolves around the interpreta- tion and application of this criterion. The plaintiffs think that the Ente Fiera does not 20 — Opinion in Case C-324/98 Tehustria [2000] ECR I-10745, I-10747, point 15. 21 — Opinion in Case C-237/99 Commission v France [2001] ECR I-939,I-941, points 5 and 6 passim. 22 — See paragraph 3 of the introduction, OJ 1998 C 143, p. 2.

58. So far as can be seen, the only case in which the Court has made any finding on the criterion of needs 'not having an 60. Agorà infers that the Ente Fiera's industrial or commercial character' to date activity is 'not... industrial or commercial' is BFI Holding. It stated that 'it is clear in character, principally from the second from the second subparagraph of Art- sentence of Article 1(1) of the articles of icle 1(b) of Directive 92/50, in its different association, which state that the Ente Fiera language versions, that the absence of an is non-profit-making ('L'Ente non ha fini di industrial or commercial character is a lucro...'). This argument must be accepted criterion intended to clarify the meaning at least to the extent that an industrial or of the term "needs in the general interest" commercial activity in principle aims to as used in that provision'. 23 As justification produce a commercial profit. it relied primarily on the practical effect- iveness of the provision. For '[i]f the Community legislature had considered that all needs in the general interest were not of an industrial or commercial character it would not have said so because, in that context, the second component of the definition would serve no purpose'. 24 61. The inference of this provision is sup- ported by Article 16 of the Ente Fiera's articles of association. Article 16(1) pro- vides that the Minister for Industry can transfer the management of the Ente Fiera 59. One must therefore agree with the to a commissioner if general administration Commission that characterising needs 'not is no longer effective or serious irregula- having an industrial or commercial char- rities are found. Further, under Art- acter' entails defining the concept of needs icle 16(2), the Minister for Industry can in the general interest more narrowly. even liquidate the Ente Fiera, either because However, it is not clear how 'industrial or its objects are no longer achievable or on public interest grounds. The possibility of liquidation on public interest grounds is, 23 — Judgment in the case of BFI Holding (cited in footnote 13), however, difficult to reconcile with the view paragraph 32. 24 — Judgment in the case of BFI Holding (cited in footnote 13), that the Ente Fiera meets industrial or paragraph 35. commercial needs. Where an undertaking

62. However, the Commission and the Ente Fiera, arguing that the needs met by the Ente Fiera are industrial or commercial in character, point first of all to the Commis- sion's Interpretative Communication on the sector of fairs, which makes clear that the organisation of fairs is an industrial or commercial activity. The Consiglio di Stato argues, along the same lines, that the 64. The Commission's Interpretative Com- organisation of fairs is connected with the munication describes the activity of fairs in advertising and marketing of goods and general and states that they are a 'concrete services and therefore complements busi- expression of the market concept'. 27 Fairs ness manufacturing. 25 The Corte suprema are further described as a sales promotion di cassazione views the organisation of fairs instrument supplementary to advertising in as supporting exhibitors' economic and that they bring together supply and demand business activities and, on this basis, clas- in an environment favourable to operators. sifies the organisation of fairs as an 'indust- They offer participants an opportunity to rial or commercial' activity. find out more about the market, identify new trends, assess the competition and make new contacts. 28But nowhere is the organisation of fairs as such categorically stated to constitute an 'industrial or com- mercial' activity. On the contrary, the communication expressly excepts measures 63. In the Commission's Interpretative of a purely private nature adopted by Communication, fairs are described as 26 — Paragraph 1(1). 27 — Introduction, second paragraph. 25 — See p. 11 of the decision of the Consiglio di Stato, Sixth Chamber, No 1267/98 of 17 September 1998. 28 — Introduction, third paragraph.

economic operators or groups of them In view of that need, no distinction should involved in the fair sector. 29 Therefore, it be drawn by reference to the legal form of is doubtful whether and to what extent this the provisions setting up the entity and communication is applicable to commer- specifying the needs which it is to meet'. 32 cially organised fairs at all. It seems to be The private-law act establishing the Ente all the more doubtful as the communication Fiera does not therefore constitute grounds is only intended to contribute to the for assuming the existence of needs having compatibility of national measures govern- an industrial or commercial character. ing the organising of fairs with the princi- ples of Community law, in particular the freedom of establishment and the free movement of services and goods. 30 If the communication expressly excepts measures of a purely private nature from its scope of 66. According to the Commission and the application, this is rather an indication that Ente Fiera, the non-profit-making rule there undoubtedly are fairs that are organ- referred to above merely means that profits ised for reasons that are not purely are not paid out to the shareholders but are industrial or commercial. Accordingly, no to be reinvested. Furthermore it must be inference may be drawn from the commun- observed in this connection that, under ication to establish whether the Ente Fiera's Article 1(2) of the articles of association, activities are industrial or commercial in the Ente Fiera is managed according to the character. criteria of 'performance, efficiency and cost-effectiveness' and, under Article 3(1) of the articles of association, the Ente Fiera is to 'pursue the objects for which it was created using the proceeds arising from carrying on its activities'. 65. The Consiglio di Stato further cites in support of its view that the Ente Fiera is not classifiable as a public body the fact that the Ente Fiera's objects are laid down by a founding document under private law and that its capital finance came from the investors on the committee. 31 However, 67. Finally, the fact that the profits that the this argument is not persuasive either. It Ente Fiera indisputably makes are not cannot be inferred from the fact that the distributed but are reinvested in the com- Ente Fiera is founded on a private-law pany and that the Ente Fiera must, under founding document that the needs it meets Article 3 of its articles of association, are industrial or commercial. According to finance its activities from its own income the case-law, 'with a view to giving full point to the existence of an industrial or effect to the principle of freedom of move- commercial activity. The articles of asso- ment, the term "contracting authority" ciation do not contain any provision must be interpreted in functional terms ... . whereby any losses incurred may be offset by the public authorities. The Ente Fiera

thus bears the economic and financial 70. Nor does it seem necessary from the consequences of its activities itself. But the spirit and purpose of Directive 92/50 to fact that the articles of association do not include the Ente Fiera in the category of provide for the possibility of losses being 'bodies governed by public law' bound by financed out of the public purse, suggests the public procurement rules 'to avoid the that it is an industrial or commercial risk of preference being given to national activity that is being carried on. One of tenderers or applicants whenever a contract the characteristics of an industrial or com- is awarded by the contracting author- mercial activity is that the undertaking ities'. 34 The concept of a 'body governed bears the economic risk of its own trans- by public law' is to be understood in a actions. functional way if this goal is to be effect- ively realised. 35 Accordingly, in assessing whether a particular body satisfies the conditions of the second subparagraph of Article 1(b) of Directive 92/50 it must always be asked whether, in the contracts awarded by it, there is actually a risk of 68. To this circumstance must be added the discrimination between tenderers on fact that the Ente Fiera stands in competi- grounds of nationality. tion with other organisers of fairs, as the Commission and the Ente Fiera submit. The decision of the Corte suprema di cassazione also contains the same argu- ment.

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72. Despite its non-profit-making status 73. In conclusion, therefore, it must be and the close state connection, the fact that found that, according to its articles of the economic and financial risk is borne by association, the Ente Fiera was established Ente Fiera alone ensures that there is no for the specific purpose of meeting needs in danger of any inclination to favour national the general interest having an industrial or service providers in awarding contracts. commercial character. It follows that the requirements for the definition of a 'body governed by public law' within the mean- ing of the second subparagraph of Art- icle 1(b) of Directive 92/50 are not fulfilled in the case of a body such as the Ente Fiera.

VII — Conclusion

74. On the basis of the foregoing considerations I propose that the question referred should be answered as follows:

The definition of a body governed by public law in Article 1(b) of Council Directive 92/50/EEC of 18 June 1992 does not include bodies which, like the Ente Fiera, meet needs in the general interest, are non-profit-making, and are closely connected with public regional or local authorities, but which finance themselves exclusively from their assets and their own income, and bear the economic and financial risk of their activity themselves without there being any possibility of any losses being offset from the public purse.