C-373/00

ADOLF TRULEY

OPINION OF ADVOCATE GENERAL ALBER delivered on 21 March 2002 1

I — Introduction 'For the purpose of this Directive:

1. These proceedings concern the interpre- tation of the concept of contracting auth- ority in the form of a 'body governed by (a) ... public law' within the meaning of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts 2 (hereinafter 'Di- rective 93/36'). Of particular concern are the definition of 'needs in the general (b) "contracting authorities" shall be the interest, not having an industrial or com- State, regional or local authorities, mercial character' and the question bodies governed by public law, associ- whether the activities of a funeral under- ations formed by one or several of such taking are covered by this concept. authorities or bodies governed by pub- lic law;

II — Legal framework "a body governed by public law" means any body:

(1) Community legislation — established for the specific purpose of meeting needs in the general interest, not having an industrial or 2. Article 1(b) of Directive 93/36 defines commercial character, the term 'body governed by public law' as follows:

6. According to the Vergabekontrollsenat (2) National legislation (the Public-Procurement Review Chamber), a need for the exercise of the business is relevant only as regards the acquisition of a 3. The following legislation would appear to be particularly important in resolving the 3 — Published in BGBI. No 194/1994 and amended in BGBl. current issue: No 136/2001.

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trading licence. An absence of subsequent arrange the funeral (by burial or cremation) need does not entitle the authorities to at a funeral facility of the City of Vienna. revoke a trading licence. Nor does the The City of Vienna shall bear the costs of Gewerbeordnung provide for any terri- the funeral only in so far as they are not to torial monopoly in such a way that the be met by third parties or covered by the business may be exercised only in a certain deceased's estate.' territory.

9. Paragraph 22(1) of the WLBG requires 7. Paragraph 132 of the Gewerbeordnung the burial or cremation of all corpses. requires the Landeshauptmann (First Min- According to Paragraph 22(2) in conjunc- ister of the Land) to set maximum charges tion with Paragraph 23 of this Law, burial for funeral services. Such charges may be or cremation may be effected only at set for the whole Land, for individual cemeteries, cineraria and special funeral administrative districts or even for individ- establishments. ual municipalities.

(b) Wiener Leichen- und Bestattungsgesetz (c) Wiener Landesvergabegesetz 5

...'

(a) more than half of whose managers are appointed by bodies of the City of Vienna or of another entity (d) Wiener Stadtverfassung within the meaning of points 1 to 4 or are persons appointed by bodies of the said entities for this purpose or 11. Also of relevance is the Wiener Stadtverfassung (Vienna Municipal Consti- tution — WStV), 6Paragraph 73 of which governs the activities of the Kontrollamt (b) whose management is subject to (Monitoring Office). In terms of organi- supervision by the City of Vienna sation the Kontrollamt forms part of the or other entities within the mean- Magistrat (Municipal Corporation) (Para- ing of points 1 to 4 or graph 106(1) of the WStV), which in turn is a body of the Municipality (City) of Vienna (Paragraph 8(11) of the WStV).

(c) which are financed, for the most part, by the City of Vienna or other '(1) The Kontrollamt shall examine the entities within the meaning of overall conduct of the municipality and of points 1 to 4, the funds and foundations having legal personality and administered by municipal authorities for proper accounting, regular- ity, economy, efficiency and expediency (review of conduct). The Kontrollamt shall

3. undertakings monitored by the Aus- trian Court of Auditors which are not 6 — LGBl. No 17/1999 of 18 March 1999.

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ADOLF TRULEY

(7) ...

(3) The Kontrollamt may further examine the conduct of entities (commercial under- takings, associations, etc.) in which the municipality has an interest other than that referred to in paragraph 2 or on whose (8) ...'

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(e) The articles of association of Bestattung 106(1) of the WStV). At that time calls for Wien tenders similar to the one at issue in the main procedure were published on several occasions.

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Vienna). Adolf Truley GesmbH (here- IV — Questions submitted for a prelimi- inafter 'Truley') submitted a tender in nary ruling response to this invitation. By letter of 6 June 2000 it was informed by Bestattung Wien that it would not be awarded the contract. 19. In this context the Vienna Vergabe- kontrollsenat has referred the following three questions to the Court of Justice for a preliminary ruling:

17. According to Bestattung Wien, the reason for this rejection was the high price quoted by Truley in its tender. Truley asserts, on the other hand, that it was the only bidder to have complied with the call 1. Must the term 'needs in the general for tenders and ought therefore to have interest' in Article 1(b) of Council been considered. The part tenders sub- Directive 93/36/EEC of 14 June 1993 mitted by the other bidders, it argues, did coordinating procedures for the award not comply with the call for tenders and of public supply contracts be inter- should not therefore have been taken into preted as meaning that consideration.

3. Is the requirement laid down in Article 1(b) of Directive 93/36/EEC that the management of the body governed by public law must be subject 22. According to those comments, the to supervision by the State or a regional Vergabekontrollsenat is, pursuant to Para- or local authority also fulfilled by a graph 94(2) of the WLVergG, responsible mere review as provided for through at first and last instance for reviewing the Kontrollamt (Monitoring Office) of decisions taken by a contracting authority the City of Vienna? in an award procedure. Its activity thus has a legal basis and represents compulsory jurisdiction. It is also a permanent body. The decisions of the contracting authorities are monitored in accordance with the rules laid down in the WLVergG and, where the latter does not contain any specific provi- V — Views of the parties and assessment sions, pursuant to Paragraph 94(3) of the WLVergG on the basis of the Allgemeines Verwaltungsverfahrensgesetz (General Law on Administrative Procedure) and the Ver- waltungsvollstreckungsgesetz (Adminis- tration Enforcement Law). The Vergabe- (1) Admissibility of the request for a pre- kontrollsenat's independence vis-à-vis the liminary ruling administration is ensured by Paragraph 94(2) of the WLVergG, which stipulates that its decisions may not be altered or rescinded by administrative means. In (a) Court or tribunal within the meaning of addition, Paragraph 95(4) of the WLVergG Article 234 EC guarantees the members of the Vergabe- kontrollsenat the independent exercise of office free from instructions. Paragraph 95(6) sets out the rules on partiality, a criterion on which the Court of Justice 20. The Court of Justice has not yet ruled placed particular emphasis in Köllensperger that the Vienna Vergabekontrollsenat is a and Atzwanger. 7 Paragraph 95(7) requires 'court or tribunal' within the meaning of the administrative decisions of the Vergabe- Article 234 EC. The question also arises in Cases C-470/99 and C-92/00 pending before the Court, in which judgments have 7 — Judgment in Case C-103/97 Köllensperger and Atzwanger yet to be delivered. [1999] ECR I-551, paragraph 22.

23. Bestattung Wien disputes the admissi- bility of the request for a preliminary ruling, arguing that its capacity as a body governed by public law within the meaning 26. An exception to this rule is possible of Article 1(b) of Directive 93/36 is imma- only if it is obvious that the interpretation terial in the main proceedings since, pur- of Community law sought by the national suant to Paragraph 99 of the WLVergG, the court bears no relation to the actual facts of Vergabekontrollsenat may decide only the main action or its purpose or where the whether the contract was awarded to the problem is hypothetical, or where the lowest bidder. Truley's bid had come Court does not have before it the factual second from last in terms of price both as or legal material necessary to give a useful a whole and as regards the various items, answer to the questions submitted to it. 9 for which the tender document allowed individual bids to be submitted. Con- sequently, it could never have been awarded the contract.

28. These considerations are, however, sig- nificant only if Bestattung Wien was in any way obliged to call for tenders for the services concerned. This calls, first of all, (a) Point of reference for the interpretation for clarification whether it is a public body of the term 'needs in the general interest' within the meaning of Article 1 of Directive 93/36 and Paragraph 12 of the WLVergG, the law passed to transpose the directive. It cannot therefore be stated that there is obviously no connection between the ques- tions submitted and the main proceedings. Nor are the questions submitted by the (i) Views of the parties Vergabekontrollsenat general and hypo- thetical.

should be interpreted objectively. More- assessment of the concept. An abstract and over, a uniform interpretation is needed general definition would not reflect the throughout the Community for reasons of functional nature of the concept of a legal certainty. contracting authority emphasised in the case-law. 12 The aim of Directive 93/36 was to open up the national public pro- curement markets, which were typically characterised by a general absence of com- petitive pressure to ensure that an open and economically appropriate award procedure 32. The Austrian Government refers to free from discrimination was adopted. It case-law according to which concepts in should always be asked, therefore, whether Community law must be given an indepen- the body concerned was subject to the dent interpretation where there is no possibility of State control and influence. explicit or implicit reference to the law of Bodies whose conduct was not determined the Member States. 11 It also argues that solely by general market mechanisms this vague concept was chosen deliberately should be governed by the directives on during the legislative procedure. Nor, it the award of public contracts. Although submits, is there any reference in the legal needs in the general interest were needs of material to the need to consult national law interest to society as a whole, the concept in the interpretation of the concept. had to be defined with regard to the legal systems of the individual Member States, which were empowered to determine what they saw as needs in the general interest. To support this proposition, Bestattung Wien refers to Annex I to Directive 93/37. From 33. Bestattung Wien, the French Govern- this it followed that that directive itself was ment and the EFTA Surveillance Authority geared to the special features in the various take the view that, although the concept Member States. The satisfaction of needs in should be interpreted in accordance with the general interest did not pursue exclus- Community law, it must be applied in the ively individual objectives, but was in the light of national legislation. interest of society as a whole.

that, when it is applied, the circumstances in Mannesmann and BFI Holding that the in the Member State concerned should be provisions of national law should be con- taken into account. It refers to the concepts sidered in any assessment of the facts. Thus of 'services of general economic interest' in in those cases the circumstances in which a Articles 16 EC and 86 EC and to the body had been established and the national Commission's communication on services legislation applicable to its establishment of general interest. 13 In Mannesmann 14 had been taken into account. In much the and BFI Holding the Court also interpreted same way Paragraph 10 of the WLBG the concept in accordance with Community should be considered in the present case. law. However, it should be added, accord- ing to the French Government, that in those judgments the Court had considered the reason for the establishment of the body concerned, the manner in which it per- formed its tasks and a possible link between the activity — for which the body had been established — and a fundamen- tal sovereign right of the State. The par- ticular situation obtaining in each case therefore justified differentiation in the application at national level of the criteria cited. The concept of needs in the general 37. Finally, the Commission takes the view interest was vague and fluid and depended that the concept should be interpreted on the extent to which the State wanted to solely in accordance with national law. In intervene. its judgment in Mannesmann the Court of Justice, when classifying the State printing office, focused on the task it performed and its importance for the operation of the State as revealed by the national legislation. In its judgment in BFI Holding the Court, refer- ring to the list in Annex I to Directive 93/37, had described the removal of house- hold refuse as a need in the general interest. It had emphasised in this context that these 36. The EFTA Surveillance Authority were needs which the State reserved the shares the view that the concept should be right to meet itself or over which it wished interpreted in accordance with Community to retain a determining influence. From law to ensure its uniform application. In these judgments the Commission infers that support of its view it refers to the judgment it is for the Member State concerned to in Linster. 15 It also points out that determine what activities are undertaken in Article 1(b) of Directive 93/36 does not the general interest in each case. It also refer to the law of the Member States. bases its view on the Opinion of Advocate However, it followed from the judgments General La Pergola in BFI Holding, where it was stressed that the directive refers to the legislation of the Member States. 16 13 — Communication from the Commission, 'Services of general interest in Europe', 20 September 2000, OJ 2001 C 17 of 19 January 2001, p. 4. 14 — Judgment in Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73. 16 — Opinion of Advocate General La Pergola in Case C-360/96 15 —Judgment in Case C-287/98 Linster [2000] ECR I-6917. BFI Holding [1998] ECR I-6821, I-6824, point 43.

(ii) Appraisal 41. It must be borne in mind, however, that the list contained in Directive 93/37 is not exhaustive. 19 Although it is intended to be as complete as possible, it contains, in the final analysis, only examples of entities which are public bodies within the meaning 38. The first part of the first question of Article 1(b). The legal definition given in concerns a rather theoretical problem in Article 1(b) of Directive 93/37, which is law, namely whether the concept of 'needs identical to the definition in Article 1(b) of in the general interest' should be inter- Directive 93/36 to be interpreted in the preted in accordance with Community law current proceedings, was inserted at the or in accordance with the law of the instigation of the European Parliament.

40. While Article 1 of Directive 93/36 does ensure that, as far as possible, all entities not refer explicitly to national law, the physically belonging to the public sector third subparagraph of Article 1(b) includes are required to invite tenders whether or a reference to the list of bodies or of not they are included in the list. Thus the categories of such bodies governed by list is not exhaustive. To see in the reference public law and fulfilling the criteria referred to in the second subparagraph of Article 1(b) which are set out in Annex I to 19 — See the judgments in BFI Holding (cited in footnote 10), Directive 93/37/EEC. This might implicitly paragraph 50, and in Agorà and Excelsior (cited in Footnote 8), paragraph 36. constitute a reference. According to the 20 — Amendment No 4, Report of the Committee on Economic case-law, tacit references to the law of the and Monetary Affairs and Industrial Policy, Session Documents of the European Parliament, 1988-89, Doc. Member States may also have to be taken A2-37/88, p. 6, and explanatory statement, p. 31.

N o 2-365, p. 83.

to the list an implicit reference to national 43. An interpretation that depends on how law does not therefore seem justified. the Member State concerned itself defines Consequently, the position continues to be its area of activity seems equally incom- that the concept of needs in the general patible with the purpose of the directives interest must be interpreted in accordance on the award of public contracts. Directive with Community law. 93/36, like the other directives on the award of public contracts, is based on Article 95 EC. It is therefore meant to contribute to the establishment and func- tioning of the internal market. In particu- lar, it seeks to bring about the free move- ment of goods in the area of public supply contracts. It therefore coordinates national legislation, as the fifth recital in the pre- amble to the directive shows. This coor- dination can succeed, however, only if uniform criteria are also developed for the interpretation of such pivotal concepts as 'contracting authorities' or, more accu- rately, 'public bodies'. The approximation 42. An interpretation based solely on Com- of laws does not mean forgoing the uniform munity law is required not only because of interpretation of pivotal concepts. The the independence of Community law but transparency and predictability achieved also to ensure its uniform application. 2 3 with the directives on the award of public The unity of the Community legal system contracts would be destroyed again if the would be threatened if the concept of concept of 'needs in the general interest', 'needs in the general interest' were inter- which plays a crucial role in identifying preted differently from one Member State contracting authorities required to call for to another. One and the same activity tenders, might be interpreted differently cannot be deemed to be in the general from one Member State to another. interest in one Member State and not to be in the general interest in another, since an authority in one Member State might then be obliged to call for tenders, while an authority entrusted with the same tasks in another Member State was not. This might lead to distortions of competition, which would be precisely the opposite of the goal of the directive of creating competition in the area of public contracts (see the 14th recital in the preamble).

47. By its second question the Vergabe- kontrollsenat asks whether it can perhaps 45. Thus, when categorising the Austrian be deduced from Paragraph 10 of the State printing office, the Court of Justice WLBG that Bestattung Wien meets 'needs took careful account of the fact that it was in the general interest'. established by law and that, in printing passports, driving licences, identity cards and legislative and administrative docu- ments, it performs a task which is in the general interest. 24 In Telaustria the Court 48. It must first be stated in this regard based its views on the fact that Telaustria that, given the division of responsibilities was established by law and that its purpose defined in Article 234 EC, it is for the is to provide public telecommunications national courts to apply to specific cases services. 25 And when classifying public the provisions of Community law as inter- development and construction entities ('of- preted by the Court of Justice. 2 7 In this fices d'aménagement et de construction') respect the question submitted for a pre- and low-rent housing corporations ('so- liminary ruling should be rephrased in such ciétés anonymes d'habitations à loyer a way that the Vergabekontrollsenat is modéré') in its judgment in Case C-237/99, asking whether legal subsidiarity of a it also referred to the national legislation regional or local authority's obligation to relating to those entities. 26 ensure the burial or cremation of a deceased person and to meet the associated costs is sufficient for it to be assumed that burial or cremation meets a need in the general interest. 46. The conclusion to be drawn as regards the first part of the first question is there- fore that the concept of needs in the general interest should be interpreted in accordance with Community law. Only when this (i) Views of the parties abstract legal concept is applied to practical situations should particular importance be attached to the legal and actual situation of the body concerned and, in this context, to national law. 49. In line with its comments on the first part of the question, Truley takes the view

that Paragraph 10 of the WLBG is imma- 52. As regards funeral services, it proposes terial when it comes to deciding whether that a distinction should be made between Bestattung Wien meets a need in the services in the narrower sense (cemetery general interest. It maintains that the con- management, opening and closing of the cept should be interpreted solely on the grave, lowering of the body or ashes, basis of Community law. Truley relies for conduct of exhumations), which are pro- its view on the judgment in BFI Holding, in vided by the City of Vienna, and services in which the Court opted for a functional the wider sense (laying out the body, interpretation of that concept. 28 funeral rites, transporting the body, wash- ing and dressing the body and placing it in the coffin, taking care of the grave, obtain- ing certificates, placing death notices in newspapers), which are provided by Bestat- tung Wien. Only funeral services in the narrower sense satisfy needs in the general 50. As regards funeral services, however, interest. Referring to the judgment in BFI Truley's position is that they satisfy a need Holding, it characterises these needs as in the general interest. First, it claims this being of the kind which either the State follows from a comparison with the list itself meets or over which it at least has a which is attached as Annex I to Council decisive influence. The business of under- Directive 93/37/EEC of 14 June 1993 taker is intended to produce a profit and is concerning the coordination of procedures thus an economic activity, not the satis- for the award of public works contracts 29 faction of a need in the general interest. and to which Article 1 of Directive 93/36 Apart from the possibility open to the First refers. Second, Truley regards funeral ser- Ministers of the Länder of setting maxi- vices to be one of the core general services mum charges, it is not subject to State which should, within the meaning of the supervision, unlike the management of judgment in BFI Holding, be provided by cemeteries, for example. Nor is the examin- the State as the guardian of the interests of ation of need required by the Gewerbeord- the public at large. nung an indication of the existence of a need in the general interest. At issue is a measure by which other trades, such as taxi firms, chimney sweeps and firms hiring out horse-drawn carriages, are affected. Bestat- tung Wien therefore believes that, in the absence of supervision by State bodies, it 5 1 . Bestattung Wien too attaches no does not meet needs in the general interest importance to Paragraph 10 of the WLBG but pursues a profit-oriented activity. maintaining that it is no more than a rule laid down by the health authority to prevent epidemics. Nothing could be deduced from it for the classification of the funeral services in the wider sense which it provided.

56. Finally, the Commission, following on from its opinion that the concept of needs in the general interest should be interpreted in accordance with national law, takes the 54. In the context of the interpretation of view that Paragraph 10 of the WLBG is the concept of general interest Austria evidence of a need in the general interest. refers to statements by the Commission on general services 30 and to the Opinion of Advocate General Van Gerven in Case C-l79/90. 31 It takes the view that the concept of general interest means the inter- est of the community, of the public at large, (ii) Appraisal of society as a whole or ensuring public welfare and should be contrasted with the interest of the individual. After all, this concept is evolving and cannot be accu- rately described. Austria argues for the task of funeral undertakings to be regarded as a 57. In what follows the concept of needs in task which is performed in the general the general interest will be interpreted in interest. accordance with Community law, and it will be decided whether Bestattung Wien satisfies such needs. The first step in this process is to consider whether a need in the general interest can already be deduced from the subsidiary obligation on the City of Vienna to instigate action and to meet 55. The French Government and the EFTA costs pursuant to Paragraph 10 of the Surveillance Authority, by contrast, con- WLBG. sider Paragraph 10 of the WLBG to be an indication of the existence of a need in the

30 — Communication from the Commission COM (96) 443, 'Services of general interest in Europe', OJ 1996 C 281, 58. Paragraph 10 of the WLBG provides 26 September 1996, p. 3, and Communication from the Commission, 'Services of general interest in Europe', for the Municipal Corporation of the City OJ 2001 C 17, 19 January 2001, p. 4. 31 — Opinion in Case C-179/90 Merci convenzionali porto di of Vienna to arrange the funeral of a Genova [1991] ECR I-5889, I-5905, point 27. deceased person where no one makes

61. In accordance with the above com- ments on the interpretation of Article 1(b) of Directive 93/36, all legal and factual circumstances of the individual case should 59. First of all, the wording of Paragraph be taken into account in the interpretation 10 of the WLBG shows that the City of of the concept of 'needs in the general Vienna is responsible for concerning itself interest'. In the following it will therefore with the funeral of the deceased where no be considered whether it can be inferred one else does so. This ensures that the from the other statements in the decision obligation to bury or cremate the deceased on a preliminary ruling that funeral services enshrined in Paragraph 22 of the WLBG is are a need in the general interest. fulfilled. Paragraph 22 in conjunction with Paragraph 23 also reveals that burial and cremation may not take place outside the cemeteries, cineraria and other facilities provided for the purpose. This provision is intended to afford protection against 62. Nearly all of the parties which have set epidemics and other health hazards. out their views in these proceedings have attempted to define the concept of needs in the general interest by comparing them with needs which are satisfied in the inter- ests of the individual. Truley and the Austrian Government in particular have tried to introduce into the discussion the ideas developed in the context of general 60. It should also be borne in mind that services that benefit the public as a whole Paragraph 10 appears in Part I, Section 1, and not just individuals. of the WLBG, which is headed 'Coroner's activity'. This is a task performed by the police, the primary purpose being to deter- mine the cause of death, as is evident from Paragraph 1(3) of the WLBG. Reference should also be made to Paragraph 8(1) of the WLBG, which stipulates that the death 63. As already pointed out, Directive 93/36 certificate must include information does not define the concept of needs in the designed to give protection against hazards general interest. Nor do the other directives

on the award of public contracts — Coun- the 'Offices publics d'aménagement et de cil Directive 93/37/EEC of 14 June 1993 construction' and of a 'Société anonyme concerning the coordination of procedures d'habitations à loyer modéré', which pro- for the award of public works contracts, 32 vide low-rent housing, 4 0 and, finally, the Council Directive 93/38/EEC of 14 June organisation of fairs and exhibitions. 41 1993 coordinating the procurement pro- cedures of entities operating in the water, energy, transport and telecommunications sectors 33 and Council Directive 92/50/EEC of 18 June 1992 relating to the coor- dination of procedures for the award of public service contracts 34 — contain a 65. The examples given above concern definition of this term, which is also used circumstances which in principle benefit in them. the general public. As stated earlier, burial or cremation is intended not least to afford protection against epidemics and other public health hazards. In this respect at least, funeral services should probably be deemed to satisfy a need in the general 64. Nor, so far as can be seen, has the interest. If, then, they are seen as a single Court of Justice yet adopted a generally service, as all involved in the proceedings applicable definition of what is meant by except Bestattung Wien consider them, it the concept of needs in the general interest will be assumed that Bestattung Wien as used in the directives on the award of meets a need in the general interest. public contracts. In the case-law, however, a number of needs of general interest have meanwhile been recognised: the production of such official printed documents as pass- ports, driving licences and identity cards, 35 the removal and treatment of household refuse, 36 the management of national 66. Bestattung Wien proposes, however, forests and woodland industries, 37 the that a distinction should be made between management of a university, 38 the oper- funeral services in the narrower sense ation of public telecommunications net- (cemetery activities, burial and exhum- works and the provision of public tele- ation) and funeral services in the wider communications services, 39 the activities of sense (taking care of the grave, laying out the body, obtaining certificates, placing death notices in newspapers). It argues that 32 — OJ 1993 L 199, p. 54. it undertakes only activities forming part of 33 — OJ 1993 L 199, p. 84. 34 — OJ 1992 L 209, p. 1. funeral services in the wider sense and does 35 — Judgment in Mannesmann Anlagenbau and Others (cited not therefore meet any needs in the general in footnote 14), paragtaph 24. interest: its activities are purely commer- 36 — Judgment in BFI Holding (cited in footnote 10), paragraph 52. cial. 37 — Judgments in Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 37, and Case C-306/97 Con- nemara Machine Turf [1998] ECR I-8761, paragraph 32. 38 — Judgment in Case C-380/98 The University of Cambridge 40 — Judgment in Case C-237/99 Commission v France (cited in [2000] ECR I-8035, paragraph 19. footnote 26), paragraphs 45 and 47. 39 — Judgment in Telaustria (cited in footnote 25), paragraphs 41 — Judgment in Agora and Excelsior (cited in footnote 8), 35 to 37. paragraph 33.

69. Similarly, Paragraph 130 of the Gewer- beordnung 1994 covers all the various services associated with funerals. In par- ticular, Paragraph 130(1), point 1, refers to tasks connected with laying out the deceased and with the funeral ceremony, which are also the subject of Paragraph 33(4) of the WLBG. This too argues against 68. It should be borne in mind, however, the possibility of dividing the various that the provisions of the Gewerbeordnung activities into those undertaken in the and the WLBG to which the requesting general interest and those undertaken in court refers do not support the differenti- the interest of an individual. ation of the various areas of activity indicated by Bestattung Wien. The very fact that in the legislation of the Land of Vienna funeral services are governed by one and the same law, the Law on Undertak- ing 42 ('Wiener Leichen- und Bestattungs- gesetz'), indicates that the two areas cannot be separated. Reference should also be made to Paragraph 34(4) of the WLBG, according to which 'the employees of the 70. The following must also be considered. legal entity or the employees of the under- A factor to be taken into account in the taking appointed by the legal entity shall examination of need pursuant to Paragraph carry out the funeral ceremony in the 131 of the Gewerbeordnung is whether the mortuary and consecration rooms and municipality has made adequate provision transport the body or ashes to the grave... for funerals. This implies that in principle it at one of the cemeteries of the City of is the municipality which bears responsi- Vienna. They shall also open and close all bility for funerals. As the example of the graves, lower the body or ashes and carry City of Vienna shows, it may perform this task itself, as the City did until 1999 through a dependent component undertak- 42 — Law of 16 October 1970, LGB1. No 31/1970; subsequent ing of Wiener Stadtwerke, or entrust it to amendments of 30 July 1974, LGBI. No 38/1974, third parties. However, the fact that the 28 February 1986, LGBI. No 20/1986, and 25 April 1988, LGBI. No 25/1988. municipality ensures the performance of

(3) Second question: meeting needs not having an industrial or commercial char- acter 73. During its analysis of the second ques- tion Truley refers to the judgment in British Telecommunications, 43 from which it emerges, Truley claims, that there must be 72. The purpose of the second question is competition in both fact and in law. In to determine whether funeral services meet particular, all the characteristics of the a need that does not have an industrial or services concerned, the existence of alter- commercial character. The Vergabekon- native services, price factors, the domi- trollsenat notes that some 550 undertakers nance or otherwise of the contracting are in operation throughout Austria. It also entity's position on the market and any points out that the Landeshauptmann may legal constraints must be taken into impose a ceiling on charges for funeral account. In Truley's view, even as a matter services. It adds that in the main proceed- of law there is no competition in the market ings Truley advanced the view, which went for funeral services. The WLBG imposed unchallenged, that there was no significant on the City of Vienna a subsidiary obli- competition in the local market in Vienna. gation in public law to ensure the burial or According to the comments submitted by cremation of the dead. This is true regard- Truley during the preliminary ruling pro- ceedings, Bestattung Wien is, under an agreement with the City of Vienna, the 43 — Judgment in Case C-392/93 British Telecommunications only provider of funeral services in Vienna. [1996] ECR I-1631.

74. Nor, Truley maintains, is there any competition in fact. Under an 'exclusive agreement' between itself and the City of 76. Referring to the literature on the legis- Vienna Bestattung Wien is the only pro- lation concerning the award of public vider of these services in Vienna. However, contracts, Truley advances the view that, even if the existence of significant compe- in the event of purely formal privatisation tition is assumed, the non-industrial or as in the present instance, the resulting non-commercial character of the need for entity continues to be a contracting auth- funeral services stems from the fact that it is ority. one of the core responsibilities of the State within the meaning of the judgment in BFI Holding. 44 Where these needs are con- cerned, the existence of private providers does not rule out the assumption of non- industrial or non-commercial character. 77. Bestattung Wien shares the view that the second question should be considered on the basis of the existence of competition. Its conclusion, however, differs from Tru- ley's. The determinant legal framework is, in its view, the Gewerbeordnung, according to which the business of funeral undertak- ing is not reserved for the State or specific 75. From the commentaries on the Bundes- entities, but may in principle be carried on vergabegesetz (the Federal law governing by any undertaking. The fact that there is only one provider in certain areas is not necessarily due to the examination of need, 44 — Truley refers to paragraph 52 of the judgment in BFI Holding (cited in footnote 10). but may also be the outcome of an entre-

preneurial decision freely taken. In Austria law. On the other hand, there is no need, in there is, moreover, competition in the form its view, for competition to exist in fact, of some 550 undertakers, all of whom are since this also depends on entrepreneurial permitted to operate throughout the decisions. country. In Bestattung Wien's opinion there is also price competition, since a ceiling is not imposed on the charges for all funeral services. The price levels in Vienna for services not covered by the ceiling cor- respond to the national average. It also believes that it is an undertaking which operates in accordance with purely econ- 80. Referring to the judgments in Mannes- omic principles and makes a profit. The mann and BFI Holding, the French Gov- municipal authorities do not exercise any ernment submits that the existence of influence over its entrepreneurial decisions. private providers in the market concerned For this reason too, it should not be does not rule out the assumption of an classified as a body governed by public activity not having an industrial or com- law within the meaning of Directive 93/36. mercial character. The case-law, it submits, shows that three criteria should be exam- ined: the purpose for which the entity was established; the manner in which it per- forms its tasks; and the connection between its activities and the prerogatives of State action. All three criteria are satisfied in the present case. Bestattung Wien was estab- lished to meet a need previously met by the 78. The Austrian and French Governments, City. The City's subsidiary obligation to the Commission and the EFTA Surveillance meet the costs pursuant to Paragraph 10 of Authority take the view that the existence the WLBG has a direct influence on the of competition is merely an indication that manner in which Bestattung Wien performs a need of an industrial or commercial its tasks, and the subsidiary obligation to character is being met. In each and every arrange funerals means that a need relating case the legal and factual situation must be to health protection and hygiene is satis- examined. They also advance the following fied. Consequently, Bestattung Wien was arguments: established for the special purpose of meet- ing needs in the general interest not having an industrial or commercial character.

85. As regards the question whether in law and/or in fact competition must be no more than possible or must actually exist, it must 83. In its judgment in BFI Holding the first be said that according to the case-law Court ruled that the existence of significant cited above this can no longer be the competition, and in particular the fact that decisive factor. If the existence of compe- the entity concerned is faced with compe- tition is merely an indication of the satis- tition from private service providers in the faction of an industrial or commercial marketplace, may be indicative of the need, but this is not the only decisive issue, absence of a need in the general interest it cannot be decisive for the interpretation not having an industrial or commercial of the term 'needs of an industrial or character. 45 However, the existence of commercial character' whether competition competition in a sector is merely an indi- is only possible in law or is also possible in cation that a given need has an industrial or fact or exists. commercial character. For, as the Court also stated in this judgment, the term 'needs in the general interest, not having an industrial or commercial character' does not exclude needs which are or could be satisfied by private undertakings as well. 4 6 This case-law has been confirmed in the judgment in Agorà and Excelsior. 47

45 — Judgment in BFI Holding (cited in footnote 10), paragraph 86. It should also be pointed out that in its 49. 46 — Judgment in BFI Holding (cited in footnote 10), paragraph judgment in BFI Holding the Court empha- 53. sised that the definition of a contracting 47 — Judgment in Agorà and Excelsior (cited in footnote 8), paragraph 38 et seq. authority is geared to the need and not to

whether it may also be satisfied by private 89. To answer these questions, the relevant undertakings. 48 What is decisive, therefore, market must first be identified. This is a is the analysis of the need concerned. question of fact, which must be answered by the requesting court itself. 51 In this context it should be borne in mind, on the one hand, that more than 500 registered undertakers may in principle operate throughout Austria. This may be an indi- cation of the existence of a national mar- 87. Besides commenting on the indicative ket. On the other hand, it should be effect of competition in a given market, the remembered that the Gewerbeordnung Court stressed in its judgment in BFI requires a licence to be obtained and the Holding, with regard to the description of need for funeral services to be examined in needs in the general interest not having an this context. This examination has to be industrial or commercial character, that in made by the Landeshauptmann, which may general the needs in question are ones be an indication of a market limited to the which are met otherwise than by the federal Land concerned. availability of goods or services in the marketplace and which, for reasons associ- ated with the general interest, the State itself chooses to meet or over which it wishes to retain a decisive influence. 49 These statements were confirmed in the 90. The examination to be made of the judgment in Agorà and Excelsior. 50 need for funeral services is also important in another respect. For one thing, it limits competition, regardless of how the relevant market is defined in geographical terms. The public authorities retain a crucial influence at least as regards the number of providers operating in the market. 88. From these comments it follows that all circumstances, both legal and factual, must be taken into account in determining whether competition exists. It should thus be considered whether funeral services are provided otherwise than through the rel- 91. For another, a particularly important evant market or whether, for reasons factor to be considered in the examination associated with the general interest, the of the need for funeral services pursuant to City of Vienna itself chooses to provide Paragraph 131(2) of the Gewerbeordnung them or at least to retain a decisive is whether the municipality has made influence over their provision. adequate provision for funerals. As stated above in connection with the first question, this implies that the municipality is active 48 — Judgment in BFI Holding (cited in footnote 10), paragraph

92. It does not necessarily follow from the last of the factors referred to that the municipality reserves this activity for itself. Even if it arranges funerals itself, there may be an additional need which it does not itself meet, and it might therefore permit other undertakings to operate despite its own activity. If it reserves this activity for itself, however, the fact that it does so is likely to be a circumstance which should be considered in the classification of funeral 94. From the legal point of view, the services, since the public authorities' delib- national court should also bear in mind erate reservation of an activity for them- that competition in the market for funeral selves is a ground for applying the direc- services is restricted not only by the afore- tives on the award of public contracts to mentioned examination of the need for the entity which benefits in this way. funeral services pursuant to Paragraph 131 of the Gewerbeordnung but also by the fact that the Landeshauptmann is required by Paragraph 132 of the Gewerbeordnung to set maximum charges. Bestattung Wien's objection that this is not true of all services does not necessarily seem relevant. The wording of Paragraph 132 of the Gewer- beordnung does not, at least, provide for 93. The question whether or not a need has any objective restriction to be imposed on an industrial or commercial character arises certain services. In any event, the compe- when it comes to determining the scope tition that is possible in law as a result of ratione personae of the directives. If the the licensing of several undertakers is authorities reserve a given activity for restricted in so far as charges are not themselves, the danger is that the decisions determined by the free interaction of supply taken in the context of the exercise of that and demand. This might be an indication activity will be influenced by factors other that the service within the meaning of the than purely economic considerations. case-law cited above can be provided There is thus cause to apply the directives otherwise than by the provision of services on the award of public contracts and so to in the market. The public authorities exer- assume that the need which is satisfied does cise some influence over the provision of

52 — See the comments in the Opinion in Joined Cases C-223/99 (b) both the factual and the legal circum- and C-260/99 Agorà and Excelsior [2001] ECR I-3605, I-3607, point 67, and the Opinion in Case C-470/99 stances are determinant factors in Universale Bau [2002] ECR I-11617, points 27 and 45. establishing the level of competition.

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OPINION OF MR ALBER — CASE C-373/00

(4) Third question: supervision by the State since it does not bear the financial risk of its or a regional or local authority activities. Truley also refers to Paragraph 10.3 of the articles of association of Bestattung Wien, according to which Vien- na's Kontrollamt examines Bestattung Wien's day-to-day business management 98. In the third question the Vergabekon- and reports its findings to the City. trollsenat asks whether the powers of the Kontrollamt of the City of Vienna in relation to Bestattung Wien result in the undertaking being monitored by the regional or local authority within the meaning of the third condition of Article 1(b) of Directive 93/36. 100. Bestattung Wien, the Austrian Gov- ernment and the Commission, on the other hand, take the view that a posteriori supervision, as carried out by the Kontrol- lamt of the City of Vienna in Bestattung Wien's case, does not meet the require- (a) Views of the parties ments to be satisfied by supervision within the meaning of Article 1 of Directive 93/36. Their various submissions are as follows:

106. The third question seeks a deter- mination as to whether, given the Kontrol- lamt's power to carry out investigations at 104. The French Government focuses less Bestattung Wien, it can be assumed that on the timing of supervision than on its there is a possibility of exercising influence effect. Referring to Advocate General Mis- within the meaning of the third criterion of cho's comments in Case C-237/99, 54 it Article 1(b) of Directive 93/36. As the asks whether the supervision merely con- Court ruled in its judgement in Case cerns proper accounting or causes the C-237/99, the object when examining this entity's business practices to follow a given criterion is to determine whether super- course. As the Kontrollamt also examines vision forges a link with the public auth- the economy, efficiency and expediency of orities that enables the latter to influence Bestattung Wien's business management, the decisions of the entity concerned in the possibility of exercising influence relation to public contracts. This means within the meaning of Article 1 of Directive that the link existing between the entity and 93/36 exists in this case. the public authorities must be equivalent to that which exists where one of the other two alternative criteria is fulfilled, namely where the body in question is financed, for the most part, by the public authorities or where the latter appoint more than half of the members of its managerial organs. 55

105. The EFTA Surveillance Authority is of the opinion that the situation described in Article 1 of Directive 93/36 is characterised by a particularly close relationship of 107. Pursuant to Paragraph 10.3 of the articles of association of Bestattung Wien, 53 — Opinion in Case C-237/99 Commission v France [2001] ECR I-939. 54 — Opinion in Case C-237/99 Commission v France (cited in 55 — Judgment in Case C-237/99 Commission v France (cited in footnote 53), point 51. footnote 26), paragraph 48.

109. It seems doubtful, on the other hand, that the Kontrollamt's power relates to a posteriori supervision. According to Para- 111. This substantive equivalence is prob- graph 10.3 of the articles of association of ably due to Paragraph 73(2) and (3) of the Bestattung Wien, the Kontrollamt of the WStV, which requires the Kontrollamt to City of Vienna is authorised to examine not examine commercial undertakings in which only the annual accounts but also Bestat- the City has a holding. This too shows how tung Wien's 'business management'. The close Bestattung Wien and the City of first point to be made, therefore, is that the Vienna are.

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ADOLF TRULEY

114. It should perhaps be added that the 56 — Judgment in Mannesmann Anlagenbau Austria and Others question raised by the requesting court (cited in footnote 14), paragraph 28. 57 — Judgment in Telaustria and Telefonadress (cited in foot- seeks to determine how far Bestattung note 25), paragraph 35.

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OPINION OF MR ALBER — CASE C-373/00

VI — Conclusion

116. In view of the foregoing considerations I propose that the questions submitted for a preliminary ruling should be answered as follows:

(1) The term 'needs in the general interest' should be interpreted in accordance with Community law. Only when this abstract legal concept is applied to a practical set of circumstances do the legal and factual situation of the body concerned and, in this context, national law become relevant.

(3) The requirement laid down in Article 1(b) of Directive 93/36 that the management of the body governed by public law must be subject to supervision by the State or a regional or local authority is also fulfilled by a review of the business management and the expediency of the actions of the body examined which includes a separate inspection of its business premises and facilities and provides for an obligation to report to the municipal authority that holds all the shares in the body examined through another undertaking all of whose shares it holds.

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